A 


%ibrat£  of  Ibtstortc 


EDITED    BY   THE    REV.    WM.    C.    PIERCY,    M.A. 

DEAN    AND    CHAPLAIN  OF    WHITEIANDS   COLLEGE, 


MARRIAGE 
IN    CHURCH    AND   STATE 

T.    A.    LACEY,    M.A. 


LIBRARY    OF    HISTORIC    THEOLOGY 

EDITED  BY  THE  REV.  WM.  C.  PIERCY,  M.A. 
Each  Volume,  Demy  8vo,  Cloth,  Red  Burnished  Top,  55.  net. 

NEW    VOLUMES   NOW    READY. 

MARRIAGE  IN  CHURCH  AND  STATE. 

By  the  Rev.  T.  A.  LACEY,\M.A.  (Warden  of  the  London  Diocesan  Penitentiary). 

THE  BUILDING  UP  OF  THE  OLD  TESTAMENT. 
By  the  Rev.  Canon  R.  B.  GIRDLESTONE,  M.A. 

CHRISTIANITY  AND  OTHER  FAITHS.    An  Essay  in  Comparative  Religion. 

By  the  Rev.  W.  ST.  CLAIR  TISDALL,  D.D. 
THE  CHURCHES  IN  BRITAIN.  Vols.  I.  and  //. 

By  the  Rev.  ALFRED  PLUMMER,  D.D.  (formerly  Master  of  University  College,  Durham). 
CHARACTER  AND  RELIGION. 

By  the  Rev.  the  HON.  EDWARD  LYTTELTON,  M.A.   (Head  Master  of  Eton  College). 
MISSIONARY  METHODS,  ST.  PAUL'S  OR  OURS  ? 

By  the  Rev.  ROLAND  ALLEN,  M,A, 
THE  RULE  OF  FAITH  AND  HOPE. 

By  the  Rev.  R.  L.  OTTLEY,  D.D.  (Canon  of  Christ  Church,  and  Regius  Professor 
of  Pastoral  Theology  in  the  University  of  Oxford). 

THE  CREEDS :   THEIR  HISTORY,  NATURE  AND  USE. 

By  the  Rev,  HAROLD  SMITH,  M.A.  (Lecturer  at  the  London  College  of  Divinity). 
THE  CHRISTOLOGY  OF  ST.  PAUL  (Hulsean  Prize  Essay). 

By  the  Rev.S.  NOWELL  ROSTROM,  M.A.  (Late  Principal  of  St.  John's  Hall,  Durham). 

The  following  works  are  in  Preparation : — 


BIBLICAL  ARCHAEOLOGY. 
By  Professor  EDOUARD  NAVILLE,  D.C.L. 

THE  PRESENT  RELATIONS  OF 
SCIENCE  AND  RELIGION. 

By  the  Rev.  Professor  T.  G.  BONNEY,  D.Sc. 
THE  CHURCH  AND  THE  INDIVIDUAL. 

By  the  Rev.  W.  J.  SPARROW  SIMPSON,  D.D. 
POPULAR  OBJECTIONS 
TO  CHRISTIANITY. 

By  the  Rev.  C.  L.  DRAWBRIDGE,  M.A. 
MYSTICISM  IN  CHRISTIANITY. 

By  the  Rev.  W.  K.  FLEMING,  M.A.,  B.D. 

RELIGIOUS    EDUCATIONS     ITS 
PAST,  PRESENT,  AND   FUTURE. 

By  the  Rev.  Prebendary  B.  REYNOLDS. 
THE  CHURCH  OUTSIDE  THE  EMPIRE. 

By  the  Rev.  C.  R.  DAVEY  BIGGS,  D.D. 

THE  NATURE  OF  FAITH  AND  THE 
CONDITIONS  OF  ITS   PROSPERITY. 
By  the  Rev.  P.  N.  WAGGETT,  M.A. 


AUTHORITY  AND  FREETHOUGHT 
IN  THE  MIDDLE  AGES. 

By  the  Rev.  F.  W.  BUSSELL,  D,D. 

THE  ETHICS  OF  TEMPTATION. 

By  the  Yen,  E.  E.  HOLMES,  M.A. 

EARLY  CHRISTIAN  LITERATURE. 

By  the  Rev.  WM.  C.  PIERCY,  M.A. 

GOD  AND  MAN,  ONE  CHRIST. 

By  the  Rev.  CHARLES  E.  RAVEN,  M,A. 

GREEK  THOUGHT  AND 
CHRISTIAN  DOCTRINE. 

By  the  Rev.  J.  K.  MOZLEY,  M.A. 

THE  BOOKS  OF  THE 
APOCRYPHA :  THEIR  CONTENTS, 
CHARACTER,  AND  TEACHING. 

By  the  Rev.  W.  O.  E.  OESTERLEY,  D.D. 

THE  GREAT  SCHISM  BETWEEN 
THE  EAST  AND  WEST. 

By  the  Rev.  F.  J.  FOAKES- JACKSON,  D.D. 


Full  particulars  of  this  Library  may  be  obtained  from  the  Publisher. 
LONDON:     ROBERT   SCOTT. 


MARRIAGE 

IN 

CHURCH    AND    STATE 


BY    THE    REV. 

T.  A.  LACEY,  M.A. 

WARDEN  OF  THE  LONDON  DIOCESAN   PENITENTIARY, 
HIGHGATE 


TOVTO  /xe'ya  *crrt' 


LONDON:  ROBERT  SCOTT 

ROXBURGHE  HOUSE 
PATERNOSTER  ROW,  E.C. 

M  CMXII 


TO  THE  BISHOP  OF  LONDON 

MY  LORD,— 

/  dedicate  this  book  to  my  chief,  whose  care  for  the  prat" 
tical  wording  of  the  holy  institution  of  which  it  treats  is  not 
the  least  among  the  burdens  of  his  heavy  charge.  I  do  not 
ask  y°ur  Lordships  permission  to  publish  it,  because  that  it  not 
the  custom  of  our  Church,  but  none  the  less  on  that  account 
do  I  submit  my  conclusions  to  the  judgment  of  those  who  are 
set  over  me  in  the  Lord.  To  teach  nothing  but  what  the 
Catholic  Church  prescribes  or  allows  is  the  purpose  of 

Your  Lordship's  obedient  servant, 

T.  A.  LACEY 

September,  1912. 


333916 


EDITOR'S  GENERAL  PREFACE 

IN  no  branch  of  human  knowledge  has  there  been  a  more 
lively  increase  of  the  spirit  of  research  during  the  past  few 
years  than  in  the  study  of  Theology. 

Many  points  of  doctrine  have  been  passing  afresh  through 
the  crucible  ;  "  re-statement "  is  a  popular  cry  and,  in  some 
directions,  a  real  requirement  of  the  age ;  the  additions  to 
our  actual  materials,  both  as  regards  ancient  manuscripts  and 
archaeological  discoveries,  have  never  before  been  so  great  as 
in  recent  years ;  linguistic  knowledge  has  advanced  with  the 
fuller  possibilities  provided  by  the  constant  addition  of  more 
data  for  comparative  study;  cuneiform  inscriptions  have  been 
deciphered,  and  forgotten  peoples,  records,  and  even  tongues, 
revealed  anew  as  the  outcome  of  diligent,  skilful  and  devoted 
study. 

Scholars  have  specialized  to  so  great  an  extent  that  many  con- 
clusions are  less  speculative  than  they  were,  while  many  more 
aids  are  thus  available  for  arriving  at  a  general  judgment ;  and, 
in  some  directions  at  least,  the  time  for  drawing  such  general 
conclusions,  and  so  making  practical  use  of  such  specialized 
research,  seems  to  have  come,  or  to  be  close  at  hand. 

Many  people,  therefore,  including  the  large  mass  of  the  parochial 
clergy  and  students,  desire  to  have  in  an  accessible  form  a  review 
of  the  results  of  this  flood  of  new  light  on  many  topics  that  are  of 
living  and  vital  interest  to  the  Faith ;  and,  at  the  same  time, 
"  practical "  questions — by  which  is  really  denoted  merely  the 
application  of  faith  to  life  and  to  the  needs  of  the  day — have 
certainly  lost  none  of  their  interest,  but  rather  loom  larger  than 
ever  if  the  Church  is  adequately  to  fulfil  her  Mission. 

It  thus  seems  an  appropriate  time  for  the  issue  of  a  new  series 
of  theological  works,  which  shall  aim  at  presenting  a  general 
survey  of  the  present  position  of  thought  and  knowledge  in 
various  branches  of  the  wide  field  which  is  included  in  the  study 
of  divinity. 


viii  EDITOR'S  GENERAL   PREFACE 

The  Library  of  Historic  Theology  is  designed  to  supply  such 
a  series,  written  by  men  of  known  reputation  as  thinkers  and 
scholars,  teachers  and  divines,  who  are,  one  and  all,  firm  upholders 
of  the  Faith. 

It  will  not  deal  merely  with  doctrinal  subjects,  though  pro- 
minence will  be  given  to  these ;  but  great  importance  will  be 
attached  also  to  history — the  sure  foundation  of  all  progressive 
knowledge — and  even  the  more  strictly  doctrinal  subjects  will 
be  largely  dealt  with  from  this  point  of  view,  a  point  of  view  the 
value  of  which  in  regard  to  the  "  practical  "  subjects  is  too 
obvious  to  need  emphasis. 

It  would  be  clearly  outside  the  scope  of  this  series  to  deal  with 
individual  books  of  the  Bible  or  of  later  Christian  writings,  with 
the  lives  of  individuals,  or  with  merely  minor  (and  often  highly 
controversial)  points  of  Church  governance,  except  in  so  far  as 
these  come  into  the  general  review  of  the  situation.  This  de- 
tailed study,  invaluable  as  it  is,  is  already  abundant  in  many 
series  of  commentaries,  texts,  biographies,  dictionaries  and  mono- 
graphs, and  would  overload  far  too  heavily  such  a  series  as  the 
present. 

The  Editor  desires  it  to  be  distinctly  understood  that  the 
various  contributors  to  the  series  have  no  responsibility  whatso- 
ever for  the  conclusions  or  particular  views  expressed  in  any 
volumes  other  than  their  own,  and  that  he  himself  has  not  felt 
that  it  comes  within  the  scope  of  an  editor's  work,  in  a  series  of 
this  kind,  to  interfere  with  the  personal  views  of  the  writers.  He 
must,  therefore,  leave  to  them  their  full  responsibility  for  their 
own  conclusions. 

Shades  of  opinion  and  differences  of  judgment  must  exist,  if 
thought  is  not  to  be  at  a  standstill — petrified  into  an  unpro- 
ductive fossil ;  but  while  neither  the  Editor  nor  all  their  readers 
can  be  expected  to  agree  with  every  point  of  view  in  the  details 
of  the  discussions  in  all  these  volumes,  he  is  convinced  that  the 
great  principles  which  lie  behind  every  volume  are  such  as  must 
conduce  to  the  strengthening  of  the  Faith  and  to  the  glory  of 
God. 

That  this  may  be  so  is  the  one  desire  of  Editor  and  contributors 
alike. 

W.  G.  P. 

JL.QNDQJJ. 


PREFACE 

IT  may  be  objected  that  there  is  in  this  book  more  about 
law  than  befits  a  work  professedly  theological.  The 
criticism  is  just,  and  I  can  meet  it  only  by  protesting  that  I 
have  reduced  the  legal  element  within  the  narrowest  pos- 
sible bounds.  Marriage  cannot  be  extricated  from  its  legal 
environment ;  my  aim  has  been  to  show  how,  in  spite  of 
that  environment,  the  religious  and  theological  aspect  of 
the  holy  estate  may  be  kept  in  view.  It  is  useless  to  ignore 
facts,  but  they  can  be  adjusted.  I  trust,  however,  that 
as  my  book  has  no  claim  to  be  considered  a  legal  treatise, 
so  also  it  will  be  found  free  from  any  false  pretensions  of  the 
kind.  It  is  not  furnished  with  any  apparatus  of  legal  in- 
stances, and  I  have  tried  everywhere  to  deal  only  with  the 
broad  features  of  human  law.  Not  here  only  have  I  avoided 
the  appearance  of  erudition  which  a  copious  display  of  cita- 
tions may  cheaply  purchase.  Few  references  will  be  found 
at  the  foot  of  my  pages,  those  few  being  almost  entirely 
confined  to  cases  of  actual  quotation,  where  authority 
seemed  to  be  needed  for  a  statement  made  in  the  text. 
What  is  common  knowledge  of  the  well  informed,  I  have 
usually  been  content  to  leave  as  such.  Where  reference  is 
made  to  documents  of  a  more  public  kind,  such  as  Acts  of 
Councils  and  Statutes,  it  seems  reasonable  to  expect  that 
all  readers  who  are  competent  to  verify  what  is  said  will 
know  where  to  find  the  texts.  The  occasional  mention  of 

ix 


x  PREFACE 

an  author  to  whom  I  am  indebted  for  information  or  for 
ideas  would  be  invidious,  and  to  mention  all  would  be  im- 
possible. Should  anyone  think  that  I  have  conveyed  away 
without  acknowledgment  something  of  his  own,  let  him 
rejoice  to  find  that  he  has  contributed  to  the  common 
stock  ;  I  ask  for  no  better  usage  of  what  may  be  mine. 

It  may  be  well  to  warn  the  reader  about  my  use  of  two 
words.  In  this  book,  as  in  my  little  Handbook  of  Church 
Law ,  I  have  confined  the  word  legal  to  a  precise  meaningi 
Borrowing  an  idea  from  authors  who  carefully  distinguish 
leges  and  canones,  I  use  it  only  of  that  which  is  ordained  by 
the  laws  of  the  medieval  Temporalty,  or  of  the  State  as  dis- 
tinguished from  the  Church.  The  English  word  law  has 
so  wide  and  varied  a  meaning,  covering  both  ius  and  lex  and 
ranging  from  the  law  of  gravitation  to  the  by-laws  of  a 
railway  company,  that  a  thing  may  lawfully  be  called 
lawful  for  other  reasons,  but  I  call  a  thing  legal  only  when 
it  has  this  particular  sanction,  and  with  the  help  of  this 
distinction  it  is  sometimes  possible  to  avoid  tiresome  peri- 
phrases. I  use  the  word  divorce  with  equal  precision.  In 
my  pages  it  means  the  breach  of  marital  intercourse  by 
which  husband  and  wife  are  discharged,  with  the  approval 
or  toleration  of  lawful  authority,  from  the  obligation  to 
live  together  according  to  the  nature  of  their  union.  It 
means  this,  and  nothing  else  ;  and  I  am  convinced  that  the 
word  ought  to  have  no  other  meaning.  A  decree  of  nullity 
ought  not  to  be  called  divorce,  because  it  is  a  declaration 
that  in  point  of  fact  there  has  been  no  binding  contract.  I 
do  not  use  the  word  in  speaking  of  that  dissolution  of  mar- 
riage, proclaimed  by  some  systems  of  law,  which  is  supposed 
to  set  the  parties  free  to  contract  a  new  marriage,  because 
I  believe  that  in  point  of  fact  there  can  be  no  such  thing ; 
marriage  is  a  natural  relation  which  can  no  more  be  dissolved 
by  law  than  the  relation  of  brother  and  sister,  and  I  object 


PREFACE  xi 

to  applying  a  word  which  has  a  real  meaning  to  a  thing  which 
does  not  exist.  Confusion  lies  that  way. 

It  seemed  probable  that  the  Report  of  the  Royal  Com- 
mission on  Divorce  would  be  published  before  my  book 
went  to  press.  This  has  not  happened  ;  but  my  loss  is  the 
less  if  I  may  venture  to  think  that  I  have  anticipated  its 
conclusions.  Divorce  is  a  painful  necessity  of  human 
society ;  unnecessary  consequences  are  deduced  from  it,  and 
I  have  examined  to  the  best  of  my  power  both  the  necessity 
and  the  deductions. 

I  have  had  two  objects.  One  is  to  ascertain  facts  ;  the 
other  is  to  draw  from  them  a  policy.  The  one  task  I 
have  pursued  through  many  pages ;  the  other  I  have 
attempted  in  few  words.  The  result  of  each  is  remitted 
to  the  judgment  of  the  reader,  that  of  the  latter  more 
especially  to  the  judgment  of  the  Church. 


ANALYTICAL  SUMMARY 

CHAPTER   I 

OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

PAGE 

The  natural  constitution  of  human  society  i 

The  creative  idea        .......  2 

Imperfectly  realized       ......  — 

Marriage  a  fundamental  institution      ....  3 

The  natural  necessity  of  the  family       ...  4 

Therefore  divinely   ordered            .....  — 

Difficulty  of  determining  details  of  this  ordering    .  5 

The  value  of  Christian  teaching   ....  — 

Revelation  explaining  Nature           ...  6 

The  essential  nature  of  marriage        .          .          .  '        .          .  7 

An  entire  union  of  man  and  woman   ....  — 

For  the  production  and  nurture  of  children  .          .  — 
Its  character  obscured    by    the   dominance    of   the 

male  sex         .......  8 

The  relation  of  affinity          .....  9 

The  growth  of  affection         ...... — 

Mutual  support  a  secondary  purpose       .          .  10 

Community  of  goods     ......  — 

An  exclusive  union  solius  cum  sola      ....  — 

The  offence  of  adultery          .          .          .          .          .11 

Thj^eyil  of  polygamy — 

Not  merely  forbidden  to  Christians           .          .  12 

But  contrary  to  the  natural  bona  matrimonii    .  14 
Inconsistent  with  the  numerical  equality  of  the 

sexes       .......  15 

And  with  the  well-being  of  the  race        .          .  — 
Indissoluble,  except  by  death       .                   .          .          .16 

A  natural  union,  not  destroyed  by  failure  to  fulfil  its 

purpose  .          .          .....  18 

Notwithstanding  the  general  practice  of  mankind  to 

the  contrary   ...... — 

xiii 


xiv  ANALYTICAL  SUMMARY 

PAGE 

The  opinion  that  marriage  is  indissoluble  only  for 

Christians         ......        19 

The  teaching  of  the  Gospel  .....       — 

As  to  the  permissibility  of  divorce  .          .       — 

Privilegium  Paulinum       ....       20 

As  to  marriage  after  divorce  .          .          .          .21 

Effected  by  contract  .          .          .          .          .          .          .25 

Between  the  parties  themselves     ....       — 

P atria  potestas  and  the  requirement  of  parental 

consent   .......        26 

The  effect  of  inability  to  fulfil  the  terms  of  the  contract      — 
Conditions  of  a  valid  contract       .          .          .          .27 

Right  intention       ......       — 

Physical  capacity  .          .          .          .          .          .28 

Freedom  from  constraint         ....       — 

And  from  misunderstanding      ...       — 

Freedom  from  previous  marriage     .          .          .29 

Sponsalia  and  precontract          ...       — 

Freedom  from  ties  of  kinship 

The  effect  of  affinity 
The  contract  fulfilled  by  consummation 

Obligations  ensuing        .... 

Equality  of  husband  and  wife 

The  natural  law  of  marriage  under  the  sanction  of  conscience       — 

Ascertained  by  interrogation  of  Nature         ...       34 

With  the  aid  of  revelation    .          .          .       '  . 
Identical  for  Christians  and  for  others  ...       — 

The  duty  of  a  Christian  man       ..... 

To  order  his  own  life  by  the  Divine  Law  of  Nature 

To  maintain  the  Divine  Law  in  human  society    .         .       35 

CHAPTER    II 
OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

Marriage  a  remedy  against  sin 36 

The  remedies  of  grace  usually  taken  from  the  order  of 
nature  ........ 

And  supernaturally  endowed         .          .          .          .          .  — 

A  Great  Mystery 37 

The  nature  of  fjmcrrripia         .          .          .          .          .          .  — 

Derived  into  Christianity  from  Greek  sources         .          .  ' — 

Not  with  any  special  sense  of  secrecy.          ...  — 

As  shown  by  the  Latin  rendering  sacramentum       .  39 


ANALYTICAL  SUMMARY  xv 

PAGE 

The  meaning  of  a  Sacrament     ......       40 

A  natural  thing  with  supernatural  endowment      .          .       — 
And  secondarily  signum  vei  sacrae         ....       — 

Means  of  Grace  ........       41 

The  seven  sacraments  ......       42 

Marriage  strictly  sacramental      .          .         .          .          .          .       — 

Greek  analogies  .          .          .          .          .          .          .          .43 

Matter  and  Form       ........       — 

The  Rite 44 

Not  drawn  from  Jewish  sources  .....       — 

But  taken  over  from  existing  practice,  especially  Roman    .       — 
The  evidence  of  Tertullian    .          .          .          .          .45 

The  evidence  of  other  Fathers       ....       — 

The  evidence  of  the  Sacramentaries        ...       — 
The  evidence  of  Nicolas  I  .         .          .          .46 

The  ancient  ceremonies        .          .         .          .          .          .47 

Essentials  and  concomitants          .....       49 

The  Sacramental  Grace 50 

Lawfulness  of  the  Act  of  Marriage       ....       — 

Aid  in  the  performance  of  the  duties  of  marriage          .       51 
Abatement  of  concupiscence          .          .          .          .          .52 

Marriage  a  moral  instrument  employed  to  this  end      .       53 

The  Sacrament  of  Marriage  only  for  the  baptized        .          .       54 

But  every  marriage  of  the  baptized  is  sacramental        .       — 

Contract  and  sacrament  not  separable   ...       — 

And  the  baptism  of  the  married  makes  their  marriage 

sacramental     ......       56 

The  case  of  one  party  baptized     ....       — 

Marriage  to  be  encouraged  for  its  sacramental  value          .          .       57 


CHAPTER    III 
OF  MARRIAGE  IN  HUMAN  LAW 

The  necessity  of  a  Positive  Law  of  Marriage  ...  59 
Which  may  conflict  with  Natural  Law  ...  — 
And  cause  a  practical  difficulty  about  obedience  .  .  60 

Five  modes  of  variation  from  Natural  Law         ...       — 
By  addition         ........       — 

By  omission         ........' — 

By  prohibition  of  what  is  allowed         .          .          .          .61 

By  dispensation  ........ — 

Absolute  .  ......  — 


xvi  ANALYTICAL  SUMMARY 

PAGE 

Contingent  in  case  of  necessity       .          .          .          .61 
Applying  even  to  Divine  Law          ...       62 
By  contradiction  ..... 

The  possibility  of  ignoring  marriage   .....       63 
The  legitimacy  of  a  power  of  controlling  marriage   .  .       64 

In  the  State 

Even  as  regards  the  matter  of  the  sacrament         .       65 
In  other  forms  of  society    ......       66 

Which  may  be  in  conflict  with  each  other     .          .       68 

In  the  Church 

Specifically  in  the  episcopate          .  71 

The  twofold  task  of  the  Church 72 

To  teach  the  world     ....  -73 

To  regulate  the  conduct  of  Christians  . 
Reluctance  of  the  Church  to  legislate 

The  case  of  Callistus 

Existing  systems  of  Law   ....  -74 

Human  Law  in  contradiction  with  Natural  Law       .          .          -75 
Other  modes  of  divergence  from  Natural  Law     . 

Juridical     .........       — 

Interpretation  of  Natural  Law       ....       76 

Evidence  of  fact 77 

Limitation  of  pleas 
Legislative.          ........       78 

By  way  of  addition      .... 

By  way  of  omission      ......       79 

By  way  of  prohibition  or  impediments  ...       80 
Obstructive    ...... 

Which  may  run  simultaneously  in  different 
systems  of  law     .....       82 

Diriment — 

Objections  to  the  creation  of  diriment  impedi- 
ments   83 

Especially  by  the  State   . 

Answered  by  the  requirement  of  a  legitimate  con- 
tract     

As  denned  by  different  authorities  for  their 
several  subjects     .          .          .          .          .85 

By  way  of  dispensation 87 

Absolute         .......       — 

Not  applicable  to  Divine  Law.          .          .       88 
Possible  with  any  system  of  Human  Law 

For  the  interception  of  an  impediment     — 
For  relaxing  obligations     ...       — 


ANALYTICAL  SUMMARY  xvii 

PAGE 

For  sanatio  in  vadice          ...  89 
Applicable  within  one  system  to  the  rules  of 

another  system     ....  — 

The  case  of  Church  and  State   .          .  90 

The  privilege  of  the  Church  in  England  .  91 

To  be  used  with  caution.          ...  92 

Contingent     .......  93 

Based  on  a  necessity        ....  — 

Therefore  not  requiring  express  legisla- 
tive sanction.          ....  — 

But  calling  for  judicial  control .          .  — 
By  a  power  lawfully  controlling  the 

acts  of  the  person  dispensed      .  94 

Applicable  to  Divine  Law  95 

The  nature  of  necessity  in  this  case  .  — 

Concerned  with  the  obligations  of  marriage  96 

Divorce     ......  — 

In  the  Christian  Church       .          .  97 

Abatement  of  community  of  life         .  98 

Dowry  and  Settlements        .         .  — 

Morganatic  marriage   ...  99 

Matrimonium  conscientiae     .          .  — 

Concerned  with  Impediments    .          .         .100 

Consanguinity   .....  — 

Affinity     ......  101 

Ligamen    .          .          .          .          .  — 

Simultaneous  polygamy        .         .  102 

Successive  polygamy   .          .          .  103 
The  practice  of    the  Eastern 
Church      .         .          .         .104 

And  of  some  modern  States      .  105 

Conflict  of  authorities.          .         .106 

Human  Law  to  be  kept  within  bounds       ....  — 


CHAPTER    IV 
OF  MARRIAGE  IN  CANON  LAW 

The  beginnings  of  the  Christian  rule 108 

Continuation  of  the  Jewish  system       ....       — 

Prophet  and  legislator  .          .         .          .         .         .109 

Its  passage  to  a  developed  legalism      .          .          .         .no 

The  elements  of  which  were  present  from  the  first       — 
Christianity  in  face  of  Roman  Law          .         .     in 


xviii  ANALYTICAL  SUMMARY 

PAGE 

The  Jewish  Law  of  Marriage      .          .          .          .          .         .112 

The  contract 113 

Its  formalities       .......       — 

Impediments        ........       — 

Divorce       .........     115 

The  Law  theocratic 

But  amended  in  the  preaching  of  the  Gospel          .     116 
The  original  Christian  Law         .          .          .          .  .117 

Restraint  of  divorce    .......       — 

Disciplinary  control     . 

By  pastoral  methods     ..... 

Not  setting  aside  the  Civil  Law    .          .  .118 

But  admitting  dispensation   .... 

From  Natural  Law 

From  Civil  Law     .          .          .          .          .          .119 

From  canonical  requirements  .          .  .120 

The  Christian  Empire         ...... 

The  Civil  Law  modified  in  a  Christian  sense 

But  imperfectly    ....  .121 

The  continuing  distinctness  of  the  Christian  rule 

Relations  of  Church  and  State — 

Eastern  Canon  Law  ........     122 

The  Quinisext  Council  in  Trullo  ....       — 

Distinctness  of  Church  and  State          .          .          .          .123 

Growing  predominance  of  Canon  Law  .          .          .124 

Its  codification -       — 

Nullification  of  irregular  marriages  .  .125 

Impediments  and  Dispensations 
Divorce  and  remarriage  .         .  .126 

Espousals       .......     128 

Marriage  of  the  clergy    .... 

Legal  control  of  marriage  by  the  Church 

Western  Canon  Law .129 

Results  of  Barbarian  conquest     .....       — 

The  disciplinary  stage  .  .  .130 

Work  of  Bishops  and  Councils 
Of  the  Popes        ....  .         .     131 

St.  Gregory  the  Great  and  England 

Church  and  State  in  disagreement          .          .          .132 
Mixed  jurisdictions          .....       — 

The  Respublica  Christiana    ...  •     133 

The  working  unit  of  Christendom.          ...       — 

Spiritualty  and  Temporalty     .  .          .     134 

Control  of  marriage  by  the  Spiritualty  .  — 


ANALYTICAL  SUMMARY  xix 

PAGE 

Cause  of  this  development      .          .          .          .     135 
Codification 136 

Dionysius  Exiguus  and  other  collectors. 

The  Decretum  of  Gratian — 

Its  immediate  effect 137 

The  Corpus  luris  Canonici    .         .         .         .          .138 

The  development  of  legalism 139 

Abuse  of  spiritual  censures   .          .          .          .  — 

Evils  of  a  theocratic  system  .          .          .          .140 

Checks  on  the  lus  Commune        .         .         .         .         .141 

Consuetudo  ........       — 

The  case  of  England — 

Legitimation  per  subsequtns  matrimonium      .     142 

Administration  of  marriage  law 143 

Diocesan       .         .         .         .         .         .         .         .       — 

Exempt  places        ......       — 

Appeals  and  Reservations     .          ...  -144 

The  supposition  of  the  Papacy        ...       — 

Dispensations 145 

Procedure  on  validity  of  marriage          ...       — 
Pro  salute  animae  .          .          .          .          .          .146 

Process  of  divorce — 

Coercive  methods.          .          .          .          .          .          .147 

Later  legislation — 

Restriction  of  impediments 148 

Computation  of  consanguinity          ...       — 

Regulation  of  affinity 149 

Limitation  of  Divine  Law     .          .          .          .          .150 

Recognition  of  marriage  de  facto    ....       — 

Classification  of  impediments  .          .          .          .      151 

Tempus  feriatum     .         .          .          .          .          .152 

Diriment  impediments     .          .          .          .  153 

Disparitas  cultus       .          .          .          .          .154 

Vows  of  continence.          ....       — 

Holy  Order      ......     155 

Consanguinity  and  affinity         .          .  157 

Cognatio  spirituals  .....       — 

Publica  honestas        .         .          .          .          .158 

Crime      .          .          .          .          .          .          .       — 

Weakening  effect  of  dispensation  .          .          .  159 

And  of  frequent  nullities          ....       — 

Moral  failure  of  the  medieval  Canon  Law*       .      1 60 
Restraint  of  clandestinity   .  .....       — 

By  penitential  censures 161 


xx  ANALYTICAL  SUMMARY 

PAGE 

As  an  obstructive  impediment         .          .          .161 
As  a  diriment  impediment       .... 
Objections  to  this    ..... 
Disruption  of  the  Respublica  Christiana       .          .          .          .162 


CHAPTER    V 
OF  MARRIAGE  IN  THE  MODERN  STATE 

The  modern  state  of  Western  Europe         .         .         .         .163 
Developed  out  of  the  elements  of  the  medieval  polity 

The  communitas  perfecta         .         .          .         .         .164 

The  theory  of  imperialism     .....       — 

Under  the  impulse  of  the  Reformation          .         .         .165 

The  teaching  of  Luther 

Reception  of  Roman  Law       ....       — 

The  teaching  of  Calvin 165 

Separateness  of  the  Church     .... 

The  Jesuit  theologians 167 

Church  and  State  each  perfecta  societas 

Marriage  under  the  new  conditions 168 

Lutheran  :    exclusively  civil          ..... 
Calvinist :  regulated  by  Divine  Law,  administered  by  the 

State 169 

Partial  acceptance  of  human  law       .         .         .         .170 
Divorce         ........     171 

The  result  of  crime 172 

Involving  dissolution  of  marriage    .          .          .173 
Wide  extension  of  Reformed  theology  and  law       .     174 
The  Counter- Reformation     .          .          .          .          .  175 

Canon  Law  continuing  to  operate. 
But  in  the  Church  as  a  separate  society 
To  which  the  control  of  marriage  is  left  by  the  State     .     176 

The  special  case  of  England 177 

A  continuing  fragment  of  the  medieval  polity     . 

Resistance  to  Jesuit  and  Puritan  separatism         .     1 79 
The  policy  of  the  Test  Acts  .         .         .         .180 
Church  and  State  not  entirely  separate  until  1828 
Marriage  controlled  by  the  Spiritualty   .          .          .181 
In  spite  of  the  legislation  of  Henry  VIII 
Further  legislation  by  the  Spiritualty       .          .     183 
Also  by  the  Temporalty        ...                   .186 
Settlements  in  equity      .....       — 
The  crime  of  bigamy — 


ANALYTICAL  SUMMARY  xxi 

PAGE 

The  divorce  of  Lord  Roos       .          .          .          .187 

Restraint  of  clandestinity         .          .          .          .189 

The  Marriage  Act  of  1753       .          .          .          .191 

The  complete  separation  of  Church  and  State .          .          .          .     193 

Tendency  towards  a  civil  law  of  marriage          .          .          .196 
Civil  Marriage     .          .          .          .          .          .          .          .197 

In  France     ........       — 

In  Europe  generally      .          .          .          .          .          .199 

In  England  ......       — 

Other  arrangements       ......     200 

Divorce       .........     201 

Impediments  y.         ......     205 

The  Present  Position 206 

Antagonism  of  Church  and  State          ....       — 
Civil  marriage       .......       — 

Impediments 208 

Divorce         ........     209 

Injurious  to  public  morals  .          .          .          .          .          .211 

The  result  of  history  .          .          .          .          .          .          .212 

A  modus  vivendi  to  be  sought      .....       — 

Distinction  of  functions          .          .          .          .          .213 

Return  to  spiritual  discipline  ....       — 

Importance  of  the  decree  Ne  temere       .          .          .215 
The  need  of  an  uniform  system  .          .          .          .          .219 

On  the  basis  of  Natural  Law         ....     220 

With  the  least  possible  interference  of  human  law        .       — 
The  duty  of  a  Christian     .          .          .          .          .          .          .221 

In  the  ordering  of  his  own  conduct      ....       — 

In  support  of  the  authority  of  the  Church  .          .          .222 
Especially  for  discipline          .          .          .          .          .        — 

Particular  needs  of  England    ....       — 

In  support  of  the  authority  of  the  State      .          .          .     224 
Reformation  of  laws      ......       — 

Particular  needs  of  England    .          .          .          .225 

In  promotion  of  mutual  toleration  of  Church  and  State       .     226 

APPENDIX  A 

1.  The  Decree  Ne  temere       ......     227 

2.  Subsequent  Decrees          .          .          .          .          .          .     231 

APPENDIX  B 

Letter  of  the  Archbishop  of  Canterbury          .          .          .     232 

APPENDIX  C 

A  proposed  mode  of  Contracting  Marriage       .         „         «     236 


MARRIAGE   IN  CHURCH 
AND   STATE 

CHAPTER  I 

Of  Marriage  in  the  Order  of  Nature 

MARRIAGE  is  described  as  "an  honourable  estate 
instituted  of  God  in  the  time  of  man's  innocency." 
Translated  into  less  symbolic  language,  this  means  that 
marriage  is  an  integral  part  of  the  natural  order  in  which 
human  society  is  constituted.  That  state  of  things  is 
natural  in  which  man  finds  the  fullest  and  most  satisfac- 
tory development  of  his  nature.  But  this  is  possible  only 
in  a  social  order.  As  a  mere  individual,  man  can  hardly 
exist  at  all,  and  certainly  cannot  live  the  fulness  of  his  life. 
Some  kind  of  community  is  necessary  for  him,  and  that 
kind  of  community  in  which  genuine  human  functions  are 
best  fulfilled  is  the  kind  properly  natural  to  him.  Aristotle, 
therefore,  conceiving  the  Greek  city  as  the  final  and  perfect 
form  of  human  society,  described  man  as  "  naturally  a  civic 
animal."  Historic  proof  that  no  one  form  of  organization 
is  exclusively  necessary  for  humanity  compels  the  enlarge- 
ment of  this  description  ;  but  the  principle  on  which  it  was 
based  remains  true,  and  we  may  recast  it  into  the  aphorism 
that  man  is  naturally  civilized.  The  truth  of  this  must  be 

M.C.S.  l  B 


2  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

maintained  on  two  faces.  On  the  one  hand,  civilization  is 
not  an  artificial  addition  to  man's  natural  endowments  ;  on 
the  other  hand,  the  true  natural  man  must  not  be  sought 
in  the  state  of  savagery,  but  in  the  most  complete  state  of 
civilization  of  which  he  is  capable. 

This  complete  state  is  doubtfully  ascertainable.  Ethics 
and  politics  are  not  exact  sciences.  We  must  suppose  a 
creative  idea,  a  divine  purpose,  to  which  human  life  more 
or  less  remotely  conforms.  This  imperfect  conformity  is 
one  of  the  chief  perplexities  of  nature.  For  the  most  part 
we  see  life  maintained  in  stable  conditions,  with  specific 
characters  ;  we  can  find  traces  of  a  progress  by  which  those 
characters  have  been  attained,  but  a  point  is  reached  where 
they  seem  to  become  fixed ;  the  species  is  unalterable, 
breeding  true  and  transmitting  habits  liable  to  little  or  no 
variation.  The  human  species  has  such  determined  charac- 
teristics, but  has  also  other  characteristics  remarkably  vari- 
able. Human  life  is  not  in  a  stable  condition,  like  that  of 
most  animals  ;  human  society  has  not  reached  a  static  con- 
dition, like  that  of  bees  or  of  ants.  The  divine  purpose  is 
imperfectly  fulfilled,  by  reason  of  the  element  of  perversity 
which  is  perceptible  in  human  nature,  and  which  is  theolo- 
gically attributed  to  a  falling  away  from  original  righteous- 
ness, or  conformity  to  the  creative  idea.  If  there  is  progress 
towards  the  ideal,  there  is  also  deterioration ;  if  there  is 
growth  there  is  also  decay.  There  is  not,  as  Aristotle 
thought,  one  fixed  standard  of  civilization,  though  such  a 
standard  may  conceivably  be  attained.  But  none  the  less 
certain  fundamental  institutions  can  be  made  out,  which 
are  almost  constant  in  human  life,  though  subject  to  wide 
variations  in  detail ;  and  in  most  cases  an  ideal  can  be 
ascertained,  the  practice  falling  short  of  it,  or  being  deflected 
from  it,  in  varying  degrees.  Such  an  institution  is  marriage. 

Marriage  is  not  an  artificial  regulation  of  human  life,  but 


A    FUNDAMENTAL  INSTITUTION  3 

a  natural  necessity.  The  continuance  of  the  species  re- 
quires a  certain  association  of  man  and  woman.  For  the 
mere  begetting  of  children,  a  merely  passing  union  would 
suffice  ;  but  more  is  required.  The  child  requires  close 
attention  and  long  continued  care.  This  is  seen  in  the 
case  of  some  other  animals  also,  but  nowhere  in  the  same 
degree.  For  most  of  such  cases,  the  ordinary  provision  of 
nature  is  a  close  association  of  the  parents  during  the  growth 
of  the  offspring,  the  female  devoting  herself  almost  entirely 
to  them,  the  male  guarding  her  and  supplying  her 
needs.  This  double  parental  instinct  varies  in  strength ; 
it  is  probably  seen  at  its  intensest  in  man.  But  here  it  is 
reinforced.  Unlike  other  animals,  man  gives  birth  to  fresh 
offspring  while  those  already  born  are  still  entirely  depen- 
dent on  the  parents.  It  follows  that  a  temporary  union, 
having  in  view  the  bearing  of  a  single  child  and  terminable 
when  the  child  is  able  to  go  alone,  will  not  suffice  ;  child- 
bearing  goes  on  for  several  years,  while  the  firstborn  and 
others  are  slowly  growing  to  maturity.  The  connexion 
of  the  parents,  therefore,  is  indefinitely  prolonged,  extending 
even  beyond  the  age  of  child-bearing.  There  results  a  com- 
munity of  interests,  an  interlacing  of  habits.  As  a  conse- 
quence of  this  prolonged  intimacy  there  appears  the  singu- 
lar phenomenon  of  human  love,  which  touches  on  the  one 
hand  the  ordinary  sexual  desire  of  the  animal  world,  but 
extends  on  the  other  hand  into  an  habitual  affection  from 
which  the  element  of  desire  may  be  entirely  eliminated.  In 
the  same  way  the  parental  and  filial  affections  of  the  human 
species  pass  the  bounds  even  of  the  most  devoted  care  shown 
by  those  animals  which  part  from  their  young  after  a  brief 
period  of  protection.  In  a  word,  the  human  species  is 
naturally  constituted  in  families. 

Marriage  is  nothing  else  but  this  permanent  connexion 
of  man  and  woman  for  the  purpose  of  producing  and  raising 


V 


4  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

children.  Being  thus  natural,  it  is  divinely  ordered  ;  all 
that  can  be  ascertained  to  be  necessary  for  its  natural  per- 
fection will  be  recognized  as  prescribed  by  God.  The  ele- 
ment of  perversity  in  human  nature  forbids  us  to  suppose 
that  all  the  divine  prescriptions  will  be  exactly  or  generally 
observed ;  the  divine  law  of  marriage  cannot  be  recon- 
structed by  a  mere  codification  of  human  practice  ;  we 
must  look  for  many  aberrations.  It  is  useless  to  attempt 
to  go  behind  social  developments  and  investigate  the  habits 
of  primitive  man,  for  primitive  man  is  inaccessible  ;  those 
savage  tribes  whose  civilization  is  most  elementary  are,  in 
respect  of  marriage,  bound  by  elaborate  rules,  the  out- 
growth of  agerlong  custom  ;  and,  since  marriage  is  an  affair 
only  of  adults,  we  cannot  find  traces  of  its  original  form 
in  those  vestiges  of  a  remote  past  which  physiology  teaches 
us  to  recognize  in  the  instincts  of  children.  But  the  in- 
evitable imperfection  of  an  historical  survey  matters  little; 
it  is  not  the  beginning  of  marriage  that  we  should  consider, 
but  the  end  ;  the  growth  and  decay  of  social  conventions 
shows  man  struggling  to  achieve  what  nature  dictates  ; 
in  his  efforts,  even  the  most  halting,  we  shall  find  traces  of 
the  formative  idea  ;  the  more  perfect  civilization  will  ap- 
proach nearer  to  the  ideal,  and  a  failing  civilization  will  be 
marked  by  fresh  aberrations. 

A  purely  historical  study  of  this  kind  may  be  expected 
to  give  valuable  results,  but  they  will  be  dashed  with  un- 
certainty. What  is  the  standard  by  which  we  are  to  mea- 
sure the  higher  civilization,  and  how  shall  we  note  the 
turning  point  to  a  downward  course  ?  It  is  a  common 
practice  to  make  the  treatment  of  marriage  a  criterion,  and 
we  are  involved  in  a  vicious  circle  if  we  simultaneously 
determine  the  true  nature  of  marriage  by  reference  to  civi- 
lized practice.  It  is  difficult  to  compare  two  civilizations 
differing  in  time  and  place  and  conditions  ;  men  pass  a 


DIVINELY  ORDERED  5 

favourable  judgment  on  their  own  customs,  and  the  greatest 
complacency  has  prevailed  at  times  in  which  history  sees 
evidence  of  general  decline  and  retrogression.  If  the  true 
nature  of  marriage  can  be  ascertained  only  from  the  cur- 
rent practice  of  human  society,  that  will  seem  true  which 
a  self-satisfied  generation  finds  to  its  taste  ;  history  may 
correct  the  judgment,  but  cannot  guard  against  new 
errors.  There  is  no  finality  in  the  flux  of  human  opinion  ; 
man  cannot  attain  the  ordered  state  of  creatures  which  he 
reckons  incomparably  inferior. 

Christianity  opens  a  way  out  of  this  intolerable  laby- 
rinth. The  Christian  is  confident  that  he  has  the  express 
guidance  of  God  in  the  more  difficult  passages  of  his  moral 
life,  and  particularly  in  respect  of  the  true  nature  of  mar- 
riage. Since  no  man  is  ever  merely  individual,  the  redemp- 
tion of  man  means  not  only  the  deliverance  of  the  indivi- 
dual from  the  effects  of  sin,  but  also  the  reconstitution  of 
human  society  according  to  the  Will  of  God.  In  the  Chris- 
tian scheme,  neither  result  is  brought  about  by  a  mere  act 
of  omnipotence  ;  grace  is  given  by  which  man  may  work 
out,  through  many  temptations  and  failures,  his  own  salva- 
tion. Grace  and  truth  go  together  ;  sufficient  knowledge 
of  the  Divine  Will  is  needed  if  its  fulfilment  is  to  be  achieved. 
Therefore  a  declaration  of  the  purpose  of  God  in  regard  to 
human  life  is  a  part  of  the  Christian  scheme.  It  is  not 
detailed,  categorical,  all-embracing  ;  it  is  not  a  law  of 
ordinances  ;  it  affords  just  so  much  light  as  may  enable 
men  to  walk  warily. 

The  revelation  of  God  through  Jesus  Christ  touches  some 
things  naturally  unknowable  ;  it  touches  chiefly  things 
knowable  but  obscure.  St.  Paul,  indeed,  seems  to  deny 
the  obscurity.  "  That  which  may  be  known  of  God  is 
manifest,"  he  says  ;  "  for  from  the  creation  of  the  world 
His  unseen  things  are  perceived  and  understood  by  means 


6  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

of  His  works."  1  Ignorance  therefore,  he  would  say,  is  inex- 
cusable, being  due  to  human  perversity.  That  is  an  ex- 
tremely severe  judgment,  designed  to  bring  home  to  the 
conscience  the  general  guiltiness  of  man  ;  it  does  not  alter 
the  fact  that  to  ordinary  men  of  perverse  minds,  if  not  to 
the  human  mind  in  its  integrity,  the  purpose  of  God  is 
obscure,  and  the  definite  principles  of  their  own  social  exis- 
tence are  hard  to  seek.  The  Christian  revelation  throws 
new  light  on  the  social  order  of  humanity. 

The  nature  of  revelation,  as  touching  these  things,  can- 
not be  misunderstood.  They  are  things  in  the  order  of 
nature,  being  ordered  as  such  by  God.  A  revelation  from 
God  will  not,  therefore,  proclaim  a  new  law ;  the  will  of 
God  has  been  imposed  on  nature  from  the  first,  and  the  divine 
law  was  legible  in  nature,  however  imperfectly  read.  We 
must  not  suppose  a  less  perfect  law  of  nature  superseded 
or  completed  by  a  more  perfect  law  of  revelation.  The 
divine  law  is  one  and  continuous,  in  nature  and  in  revela- 
tion.2 The  divine  law  of  marriage  is  nothing  else  but  the 
order  of  nature.  Revelation  does  but  enable  us  to  under- 
stand it  more  perfectly. 

We  therefore  find  that  our  Lord  Jesus  Christ,  when  asked  a 
question  about  the  divine  law  of  marriage,  referred  to  what 
had  been  done  "  from  the  beginning."  This  beginning  He 
was  content  to  describe  in  the  language  of  the  Book  of 
Genesis.  It  must  not  be  inferred  from  this  that  a  rule 
propounded  in  the  Scriptures  of  the  Old  Testament,  even 
with  the  highest  sanction,  is  necessarily  an  expression  of 
the  Divine  Will ;  for  our  Lord  immediately  afterwards  told 

1  Romans  i.  19-20. 

2  Cp.  Isidore,  Etym.  v.  4:    lus  naturale  est  quod  in  lege  et    in 
evangelio   continetur.      More    comprehensive   is   the   definition   of 
the  Institutiones,  lib.  iii.,  tit.  2.    lus  naturale  est  quod  natura  omnia 
animalia  docuit. 


THE  ESSENTIAL  NATURE  OF  MARRIAGE      7 

the  same  questioners  that  a  certain  regulation  of  the 
Mosaic  law  was  a  mere  concession  to  human  perversity  and 
the  hardness  of  men's  hearts,  in  derogation  from  the 
creative  idea  of  God.1  It  is  only  in  the  teaching  of  the 
Gospel,  in  the  genuine  Christian  tradition,  that  we  have  a 
conclusive  declaration  of  the  divine  purpose. 

With  this  help  we  have  to  determine  more  particularly 
the  true  nature  of  marriage. 

Marriage  is  an  entire  union  of  man  and  woman.  For 
the  purpose  of  generation,  a  momentary  connexion  suffices, 
with  complete  separation  following.  In  a  highly  artificial 
society,  such  as  that  conceived  in  the  Republic  of  Plato, 
children  so  born  might  be  reared  in  common,  as  foundlings 
and  orphans  are  actually  reared  in  most  civilized  commu- 
nities. But  this  would  be  a  frustration  of  the  natural  in- 
stinct of  parentage,  and  the  practical  evils  flowing  from 
it  are  sufficient  proof  that  the  suppression  of  that  instinct 
is  not  an  advance  in  the  line  of  natural  development.  A 
partial  union,  directed  exclusively  to  the  business  of  raising 
children  and  allowing  the  separation  of  man  and  woman 
in  regard  to  other  interests,  may  suffice  for  the  material 
needs  of  the  offspring ;  such  connexions  are  not  unfre- 
quent  in  societies  where  artificial  distinctions  of  rank 
hinder  a  closer  union ;  but  the  moral  influence  of  one  parent 
is  inevitably  weakened,  and  the  full  purpose  of  guardian- 
ship is  not  attained.  This  can  be  achieved  only  when  the 
parties  to  the  union  enter  fully  and  unreservedly  into  one 
another's  lives,  or  rather  into  a  new  joint  life  which  they 
share  on  equal  terms.  In  the  words  of  the  Roman  jurist, 
marriage  is  viri  et  mulieris  coniunctio  individuam  vitae  con- 
suetudinem  continens* 

St.  Paul  insisted  that  carnal  copulation,  even  of  the  most 
transitory  kind,  effects  a  real  union  :  "He  that  is  joined 
i  St.  Matthew  xix.  4-8.  3  Instit.,  lib.  i.,  tit.  9- 


8  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

to  a  harlot  is  one  body/'  x  The  natural  conjunction  is 
evident  when  it  produces  offspring,  derived  inseparably 
from  the  two  parents,  and  the  Apostle  applies  the  maxim, 
"  The  two  shall  become  one  flesh."  This  emphatic  judg- 
ment has  left  its  mark  on  the  ecclesiastical  law  of  affinity. 
If  a  connexion  so  transitory,  entered  upon  for  the  mere 
gratification  of  appetite  without  any  but  the  most  acci- 
dental regard  for  the  procreation  of  children,  can  be  thus 
described,  much  more  does  the  description  fit  the  perma- 
nent union  of  husband  and  wife  for  the  full  purpose  of  mar- 
riage. To  this  the  maxim  originally  applied,  and  with 
that  application  it  was  incorporated  by  our  Lord  into  His 
own  teaching.* 

This  merging  of  two  lives  into  one  has  been  obscured 
by  a  one-sided  conception  of  the  relation,  due  to  the  prac- 
tical superiority  of  the  man  over  the  woman.  His  greater 
strength,  activity,  and  publicity,  contrasting  with  the  com- 
parative retirement  necessary  to  a  woman  engaged  in  the 
task  of  child-bearing  and  nurture,  have  made  it  seem,  com- 
monly though  not  universally,  that  the  wife  is  absorbed 
into  the  family  of  her  husband.  A  result  is  seen  in  the 
practice  of  the  Roman  law,  by  which  a  wife  passed  from 
the  patria  potestas  of  her  father  to  that  of  her  husband,  or 
to  that  of  his  father  if  he  himself  were  not  yet  discharged. 
Similar  ideas  pervade  the  marriage  customs  of  almost  all 
races,  in  whatever  degree  civilized.  They  have  some  foun- 
dation in  nature,  since  they  rest  on  the  normal  conditions 
of  sex,  but  they  depart  from  nature  in  their  denial  of  the 
individuality  of  the  human  being.  This  individuality  is 
no  less  characteristic  of  human  life  than  the  social  order 
without  which  human  life  is  impossible ;  in  marriage, 
rightly  understood,  the  two  characteristics  are  equally 

1  i  Corinthians  vi.  16. 

2  St.  Matthew  xix.  5  ;    St.  Mark  x.  8. 


THE  RELATION  OF  AFFINITY  9 

recognized  ;  an  individual  man  and  an  individual  woman 
coalesce  into  a  conjoined  life,  becoming  an  individual  pair 
from  which  springs  a  new  society.  Marriage  is  properly  a 
discharge  from  parental  control ;  husband  and  wife,  without 
loosing  the  natural  ties  of  blood  connecting  them  severally 
with  their  former  kindred,  pass  away  from  the  families  in 
which  they  were  bred  to  form  in  their  union  a  new  family. 
It  is  the  teaching  of  the  Gospel,  appropriating  once  more 
and  reinforcing  an  ancient  maxim.  Not  the  woman  alone, 
but  also  the  man,  "  shall  leave  his  father  and  mother,  and 
shall  cleave  to  his  wife  ;  and  the  two  shall  become  one 
flesh." 

From  this  coalescence  it  follows  inevitably  that  the  hus- 
band becomes  akin  to  the  kindred  of  his  wife,  in  the  same 
degree  as  herself,  and  she  to  his.  What  the  more  usual 
practice  of  mankind  acknowledges  only  in  the  case  of  the 
woman  is  true  also  by  parity  of  nature  in  the  case  of  the 
man.  The  relation  known  as  affinity  is  no  less  natural 
than  that  of  consanguinity. 

This  close  union  of  husband  and  wife  has  the  further 
consequence  of  engendering  a  new  kind  of  natural  affec- 
tion. The  tie  of  near  kinship  is  felt  for  a  time  by  animals 
of  many  species  ;  with  men,  bred  and  nurtured  in  families, 
it  subsists  longer  and  even  extends  beyond  a  generation  ; 
a  man  and  a  woman  bind  themselves  together  in  wedlock 
with  a  feeling  of  peculiar  intensity.  Sexual  attraction, 
which  affords  the  natural  impulse  to  marriage,  passes  into 
a  love  rooted  and  established  in  habit.  It  has  been  well  said 
that  a  wife's  love  for  her  husband  becomes  above  all  love 
for  the  father  of  her  children  ;  frustration  of  motherhood 
sometimes  produces  deplorable  disorders,  but  the  bare 
intention  of  procreating  children  in  common,  even  if  disap- 
pointed, will  bring  about  a  sense  of  identity,  of  a  single 
purpose  in  life,  which  makes  the  closest  bond  of  human 


io  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

affection.  "  Husbands  should  love  their  wives,"  says  St. 
Paul,  "  as  their  own  bodies.  He  that  loves  his  wife  loves 
himself ;  for  no  man  ever  hated  his  own  flesh,  but  nourishes 
and  cherishes  it."  1 

Indeed  there  is  here  found  a  secondary  cause  for  the 
divine  institution  of  marriage:  "It  was  ordained,"  says 
the  homily  in  the  Form  of  Solemnization  of  Matrimony, 
"  for  the  mutual  society,  help,  and  comfort,  that  the  one 
ought  to  have  of  the  other,  both  in  prosperity  and  adver- 
sity." A  marriage  unfruitful  in  children  may  thus  find  a 
place  in  the  economy  of  nature. 

From  this  complete  unity  of  life  there  seems  to  follow 
naturally  community  of  goods.  Some  degree  of  community 
is  necessary  if  the  end  of  marriage  is  to  be  attained. 
The  children  are  a  joint  charge,  and  the  maintenance  of  a 
home  can  hardly  be  managed  by  a  partnership  of  limited 
liability.  The  long  continuance  of  an  unequal  discrimina- 
tion of  law  in  favour  of  the  husband  has  obscured  in  some 
countries  the  obvious  and  equitable  requirements  of  nature, 
paving  the  way  for  an  excessive  independence  in  married 
life  ;  frequent  failures  of  duty  on  the  part  of  husband  or 
wife  make  it  necessary  in  practice  to  give  each  of  them  legal 
securities  against  the  crime  or  carelessness  of  the  other ; 
but  community  remains  the  true  basis  of  economics  in  the 
family.  The  formula  of  marriage,  "  With  all  my  worldly 
goods  I  thee  endow,"  indicates  the  normal  state  of  things  ; 
and  it  should  in  effect  be  mutual. 

Marriage  is  thus,  in  the  order  of  nature,  an  entire  con- 
junction of  two  lives,  to  be  lived  as  one  for  the  purpose  of 
achieving  the  end  proposed  :  totius  vitae  consortium. 

The  marriage-bond  is  exclusive  ;  Coniunctio  solius  cum 
sola.  An  adumbration  of  this  principle  is  seen  in  the  fierce 
jealousy  with  which  certain  wild  animals  keep  their  mates 
1  Ephesians  v.  38-9. 


AN  EXCLUSIVE  UNION  n 

to  themselves.  In  men,  the  instinct  of  jealousy  is  reasoned, 
without  losing  much  of  its  peremptoriness.  Carnal  inter- 
course of  husband  or  wife  with  another  is  all  but  universally 
recognized  as  one  of  the  gravest  offences  against  social 
order  ;  adultery  is  a  private  wrong  of  so  exasperating  a  char- 
acter that  on  grounds  of  policy  it  is  in  many  communities 
treated  as  a  public  crime  ;  elsewhere,  private  vengeance 
is  condoned,  or  even  permitted.  But  a  very  different 
measure  is  meted  to  husband  and  to  wife.  The  adultery  of  a 
husband  with  an  unmarried  woman  is  treated  as  a  minor 
offence,  and  the  wife's  jealousy  is  seldom  justified  by  law 
or  social  opinion  if  it  runs  to  extreme  action  ;  a  wife's 
adultery  is  regarded  as  a  much  graver  wrong.  Christian 
doctrine  allows  no  such  distinction,  reinforcing  the  natural 
instinct  of  jealousy  on  both  sides  alike  by  indiscriminating 
condemnation  of  adultery  as  a  sin  at  once  of  luxury  and  of  in- 
justice ;  but  this  teaching  has  not  succeeded  in  controlling 
the  social  judgments,  even  of  Christian  communities.  There 
is,  indeed,  a  difference  between  the  two  cases,  imposed  by 
nature  ;  the  adulterous  wife  may  put  upon  her  husband 
a  spurious  offspring,  the  adulterous  husband  can  do  no  such 
thing.  If  the  sin  against  chastity  is  identical  in  the  two 
cases,  the  effect  of  the  sin  of  injustice  is  greater  in  one  case 
than  in  the  other  ;  social  custom  and  law  can  hardly  fail 
to  recognize  the  difference,  and  to  visit  the  offence  more 
severely  where  the  wrong  done  is  the  greater.  But  a 
general  condonation  of  adultery  on  the  husband's  part, 
coupled  with  deprecation  of  jealousy  on  the  wife's  part,  is 
characteristic  of  a  corrupt  state  of  society  in  revolt  against 
the  dictates  of  nature  no  less  than  against  the  teaching  of 
Christianity.  It  destroys  the  idea  of  marriage  as  a  conjunc- 
tion solius  cum  sola. 

Equally  in  conflict  with  that  idea  is  the  legal  institution  of 
polygamy.    So  widespread,  however,  is  this,  that  it  may 


12  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

seem  rash  to  declare  it  contrary  to  nature,  and  grave  opinions 
can  be  quoted  in  favour  of  its  being  permissible  by  natural 
law.  That  of  St.  Augustine  is  conspicuous.  He  takes  his 
stand  upon  a  physiological  ground ;  plurality  of  wives,  as 
distinct  from  plurality  of  husbands,  is  not  contrary  to  the 
nature  of  marriage,  "  plures  enim  feminae  ab  uno  viro  fetari 
possunt,  una  vero  a  pluribus  non  potest."  l  He  supports 
this  by  the  fanciful  analogy  of  one  master  having  many 
slaves,  while  one  slave  can  have  only  one  master,  and  by 
the  more  dangerous  argument  that  one  true  God  is  the  Lord 
of  many  faithful  souls,  while  for  a  soul  to  go  after  many  gods 
is  the  fornication  of  idolatry.  This  might  certainly  be 
pleaded,  if  pertinent  at  all,  in  favour  of  polygamy  among 
Christians,  since  the  figure  of  marriage  is  expressly  used  to 
illustrate  the  relation  of  the  faithful  to  Christ.  But  St. 
Augustine,  with  many  others  following  him,  treats  the 
restriction  to  monogamy  as  an  arbitrary  discipline  imposed 
by  divine  authority  on  Christians,  thus  introducing  the  con- 
fusion inevitably  caused  by  the  supposition  of  a  divine  law 
over-ruling  the  law  of  nature.  He  seems  to  have  been 
moved  to  this  mainly  by  an  unwillingness  to  attribute  to 
the  Fathers  of  the  Old  Testament  any  ignorance  or  disregard 
of  a  divine  institution  ;  the  concubinage  of  Abraham,  the 
polygamy  of  Jacob  and  of  David,  were  therefore  to  be  justi- 
fied as  in  accordance  with  natural  law,  and  he  laboured  to 
maintain  that  in  all  such  cases  the  one  motive  was  a  desire 
to  fulfil  the  divine  injunction  of  fruitfulness.2 

It  is  an  obvious  objection  to  this  theory  that  no  trace  can 
be  found  of  any  express  prohibition  of  polygamy  in  the 
preaching  of  the  Gospel.  If  the  maxim,  "  The  two  shall 
become  one  flesh,"  can  be  stretched  to  imply  such  prohibi- 
tion, which  is  a  very  doubtful  resource,  there  is  no  new  rule 

1  De  bono  coniugali,  17.  a  Dt  bono  viduitatis,  7. 


THE  EVIL  OF  POLYGAMY  13 

introduced,  for  appeal  is  made  to  the  primary  institution  of 
marriage.  The  maxim  is  directed  against  an  abuse  of  the 
institution  which  is  remotely,  if  at  all,  connected  with  poly- 
gamy ;  it  forbids  separation  from  one  wife,  not  the  addition 
of  another.  Attempts  have  been  made  to  bring  into  this 
connexion  St.  Paul's  rule  requiring  a  bishop  to  be  "  the 
husband  of  one  wife,"  as  though  polygamy  were  allowed  in 
ordinary  Christians  and  forbidden  only  to  those  called  into 
the  sacred  ministry ;  but  this  interpretation  is  impossible 
in  view  of  the  corresponding  regulation  about  consecrated 
widows  ; *  if  it  could  be  shown  that  plurality  of  wives  was 
tolerated  in  any  of  the  communities  to  which  the  regulation 
extended,  it  is  certain  that  plurality  of  husbands  was  un- 
known. There  can  be  no  doubt  that  the  rule  was  intended 
to  exclude  those  who  had  contracted  a  second  marriage  after 
separation  by  death  or  divorce. 

In  the  absence  of  any  express  prohibition  of  polygamy,  it 
is  invariably  assumed  by  the  writers  of  the  canonical  books 
of  the  New  Testament,  and  by  the  constant  witness  of  the 
Christian  Church,  that  monogamy  is  the  rule.  It  is  assumed 
in  the  condemnation  of  marriage  after  divorce  ;  for,  if  it 
were  lawful  to  take  a  second  wife  while  retaining  the  first, 
it  would  a  fortiori  be  lawful  to  take  a  second  after  repudiat- 
ing the  first.*  It  may  be  taken  for  certain  that  the  lack  of 
any  express  prohibition  is  due  to  the  fact  that  the  practice 
of  polygamy  was  unknown  among  those  to  whom  the  Gospel 
was  preached.  But  these  men  either  had  the  Scriptures  of 
the  Old  Testament  in  their  hands,  or  were  speedily  intro- 
duced to  them  as  containing  the  oracles  of  God  ;  and  these 
books  recorded  without  blame  the  polygamy  of  the  Fathers. 

1  i  Timothy  iii.  2  ;  v.  9. 

2  But  conversely,  the  allowance  of  successive  polygamy  in  case 
of  divorce  (infra,  p.  104)  cannot  be  pleaded  in  justification  of  simul- 
taneous polygamy,  which  alone  is  here  in  question. 


14  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

Therefore,  if  it  was  not  necessary  to  warn  men  against  fol- 
lowing this  example,  it  must  be  inferred  either  that  polygamy 
was  still  permissible,  or  that  men  were  already  convinced 
of  its  natural  impropriety.  The  former  alternative  being 
inadmissible,  the  latter  is  imposed.  It  follows  that  the 
obligation  of  monogamy  was  learnt  by  the  light  of  nature. 
With  this  all  Christian  practice  agrees.  Unsupported  by 
any  positive  prohibition,  the  Christian  witness  against 
polygamy  has  been  unwavering.  Whatever  toleration  may 
at  times  have  been  accorded  to  illicit  connexions,  the  union 
solius  cum  sola  has  been  recognized  as  the  only  true  marriage. 
Apart  from  the  completely  abnormal  cases  of  the  Anabaptists 
and  the  Mormons,  the  only  serious  attempt  of  any  one  claim- 
ing the  Christian  name  to  relax  this  rule  is  found  in  the 
allowance  of  a  second  wife  accorded  by  Luther  and  Melanch- 
thon  to  Philip  of  Hesse ;  the  secrecy  with  which  this  was 
done,  and  the  shame  of  its  authors  on  detection,  are  the  most 
eloquent  assertion  of  the  rule  which  they  violated. 

If  monogamy  is  required  by  natural  law,  a  reason  for  it 
must  be  found  in  nature.  Theologians  from  the  time  of 
St.  Thomas  Aquinas  commonly  seek  this  in  a  consideration 
of  the  bona  matrimonii,  the  three  ends  of  marriage  defined 
by  St.  Augustine,  proles,  fides,  sacramentum.*  What 
militates  against  these  is  held  to  be  contrary  to  natural  law. 
Plurality  of  wives  does  not,  says  St.  Thomas,  or  his  reporter, 
in  any  way  hinder  the  procreation  of  children ;  it  does  to 
some  extent  injure  the  mutual  trustfulness  and  accommo- 
dation which  is  fides ;  it  entirely  ruins  the  sacramentum, 
which  is  the  mystical  signification  of  the  union  of  Christ 
with  the  one  Church.  Thus  it  is  contrary  to  nature  in 
respect  of  the  second  and  third  ends  of  marriage.2 

Consideration  of  the  sacramental  character  of  marriage  is 

1  De  bono  coniugali,  24,  and  De  Genesi,  ix.  7. 
1  Sum.  Theol.,  Suppl.  65,  i. 


THE  EVIL  OF  POLYGAMY  13 

postponed  ;  but  here  it  may  be  remarked,  first,  that  a  sacra- 
ment is  not  strictly  in  the  natural  order,  and  that,  even  if 
marriage  be  supposed  to  have  been  instituted  with  a  view 
to  its  sacramental  use,  the  violation  of  that  ultimate  pur- 
pose can  hardly  be  construed  as  a  contradiction  of  the 
original  institution  ;  secondly,  that  St.  Thomas  himself,  or  his 
reporter,  allows  a  certain  congruity  of  polygamy  with  the 
mystical  significance  of  marriage,  "  quia  quamvis  non  signi- 
ficaretur  coniunctio  Christi  ad  Ecclesiam,  inquantum  est 
una,  significabitur  tamen  per  pluralitatem  uxorum  dis- 
tinctio  graduum  in  Ecclesia  ;  quae  quidem  non  solum  est  in 
Ecclesia  militante,  sed  etiam  in  triumphante."  x  In  the 
same  place  he  allows  also  that  fides  manet  ad  plures.  His 
theological  reasons  for  condemning  polgyamy  therefore 
break  down. 

Firmer  ground  is  needed.  It  may  without  difficulty  be 
secured  in  a  consideration  of  the  approximate  equality  of 
the  sexes  under  ordinary  natural  conditions.  Abnormal 
conditions  are  known  to  produce  a  preponderance  of  one 
sex.  The  practice  of  polygamy  is  probably  due,  in  part,  to 
a  redundance  of  women,  in  part  to  the  selfish  aggrandise- 
ment of  powerful  men.  These  causes  in  combination  will 
account  for  its  establishment  by  law,  but  it  obviously  can- 
not be  general  without  an  enormous  disparity  of  numbers  in 
the  two  sexes  ;  in  point  of  fact,  it  seems  to  be  usually  a 
privilege  of  chieftainship  or  of  wealth.  But  a  practice 
due  to  abnormal  conditions,  and  open  only  to  persons 
abnormally  placed,  is  no  part  of  the  order  of  nature. 

But  further,  polygamy  can  be  shown  to  militate  actively 
against  the  well-being  of  the  race,  which  must  be  assumed 
as  a  true  object  of  the  natural  order.  It  is  found  in  practice 
to  make  for  less  fecundity.  The  eugenic  plea  that  it  implies 
breeding  from  the  stronger  and  more  virile  stock,  true  in 
1  Sum.  Tbeol.,  Suppl.,  65,  2. 


16  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

the  case  alike  of  wild  beasts  and  of  cattle,  is  nullified  in  the 
case  of  men  by  the  diminished  efficiency  of  fatherhood  and 
of  education  within  the  family.  The  gravest  objection, 
however,  is  that  under  normal  conditions  polygamy  con- 
demns a  proportion  of  one  sex  to  sterility,  and  to  the  moral 
evils  flowing  from  the  frustration  of  natural  instincts.  This 
result  is  recognized  in  a  significant  manner ;  the  employ- 
ment of  eunuchs  is  a  regular  accompaniment  of  the  practice. 
To  these  more  public  evils  should  be  added  a  private  wrong 
suffered  within  the  marriage-bond.  Polygamy  destroys 
the  mutuality  of  right  and  duty  on  which  the  union  of  hus- 
band and  wife  properly  rests.  "  The  wife  has  not  command 
of  her  own  body/'  says  St.  Paul,  "  but  the  husband ;  and 
so  too  the  husband  has  not  command  of  his  own  body,  but 
the  wife."  l  The  due  cannot  be  freely  rendered,  except  on 
condition  that  each  man  has  but  one  wife,  and  each  woman 
but  one  husband.  This  last  argument  was  urged  by  St. 
Thomas  in  his  more  philosophic  mood,  as  also  the  fine  con- 
tention that  polygamy  destroys  equality  of  love  between 
husband  and  wife,  introducing  a  servile  relation.  "  Apud 
viros  habentes  plures  uxores,"  he  remarks,  "  uxores  quasi 
ancillae  habentur."  * 

Polygamy,  whether  in  its  usual  form  or  in  the  rarer  form 
of  polyandry,  is  thus  seen  to  be  contrary  to  natural  law ; 
no  supernatural  revelation  is  required  for  its  rebuke,  and 
none  has  been  given.  The  practice,  however  widespread, 
is  an  aberration  ;  the  civilization  which  insists  on  mono- 
gamy is  in  the  true  order  of  human  development.  Marriage 
in  the  order  of  nature  is  the  union  solius  cum  sola. 

The  entire  union  of  man  and  woman  effected  by  marriage 
is  indissoluble  except  by  death.  That  death  dissolves  it  is 
evident  from  the  fact  that  its  whole  aim  is  concluded  within 

1  i  Cor.  vii.  2-4.  *  Summa  contra  Gentiles,  iii.  124. 


INDISSOLUBLE  EXCEPT  BY  DEATH          17 

the  compass  of  this  present  life.  The  obvious  inference  is 
supported  by  the  answer  of  our  Lord  to  the  Sadducees  that 
"  in  the  resurrection  they  neither  marry  nor  are  given  in 
marriage."  l  It  is  the  constant  teaching  of  Christianity. 
"  A  wife  is  bound,"  says  St. Paul,  "  for  so  long  time  as  her 
husband  lives  ;  but  if  the  husband  be  dead,  she  is  free  to  be 
married  to  whom  she  will."  *  The  discouragement  of  second 
marriages,  which  has  been  a  marked  feature  of  some  stages 
of  Christian  discipline,  is  not  due  to  any  doubt  on  this  head, 
but  only  to  the  conviction  that  widowhood,  like  virginity, 
is  a  higher  state.  "  She  is  happier  if  she  abide  as  she  is, 
after  my  judgment,"  adds  St.  Paul ;  "  and  I  think  that  I  have 
also  the  Spirit  of  God." 

"  A  wife  is  bound  for  so  long  time  as  her  husband  lives," 
says  the  Apostle  ;  and  this,  like  every  other  obligation  in 
marriage,  is  mutual.  It  is  unqualified.  But  it  may  be  urged 
with  some  show  of  reason  that  other  circumstances,  as  well 
as  death,  put  a  natural  end  to  the  union.  The  first  purpose 
of  marriage  is  frustrated  by  sterility  ;  a  violent  dislike  or 
incompatibility  of  temper  may  drive  the  parties  asunder, 
and  so  frustrate  both  the  hope  of  children  and  the  good  of 
family  life  ;  enforced  separation,  as  by  sentence  of  law, 
insanity,  or  certain  kinds  of  disease,  may  have  the  same 
effect  ;  adultery,  at  least  on  the  wife's  part,  involves  a 
breach  of  the  purpose  of  marriage  even  more  serious.  By 
the  operation  of  these  causes,  it  has  been  argued,  the  union 
is  naturally  dissolved,  no  less  than  by  death. 

But  marriage  is  not  instituted  for  one  cause  only,  so  as 
to  be  frustrated  by  sterility,8  nor  is  it  a  mere  social  union 
entered  upon  for  certain  specific  objects  with  reservation  of 
the  right  to  withdraw  from  it  in  case  of  failure.  It  is  an 

1  Matt.  xxii.  30.  2  i  Cor.  vii.  39.     Cp.  Rom.  vii.  1-3. 

3  See,  however,  below,  p.  28,  for  the  case  of  impotence. 

M.C.S.  C 


i8     OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

entire  union,  completed  by  natural  copulation  prior  to  the 
achievement  of  any  such  objects,  and  retaining  its  effect  in 
spite  of  subsequent  disappointment.  It  is  a  natural  union, 
as  intimate  and  indestructible  as  that  of  parent  and  child. 
The  purpose  of  nature  in  the  relation  of  parent  and  child  may 
be  frustrated  by  separation  as  completely  as  in  the  case  of 
husband  and  wife,  but  the  parent  does  not  cease  to  be  parent 
or  the  child  cease  to  be  child  ;  their  mutual  obligations  may 
be  obscured  or  suspended,  but  cannot  be  definitely  cancelled. 
"  Marriage  is  ideally  indissoluble/'  says  a  recent  writer, 
who  perhaps  does  not  go  the  whole  way  with  me  in  tracing 
consequences,  "  the  relation  of  husband  and  wife  being  like 
that  of  father  and  son,  or  brother  and  sister,  where  there  may 
be  casual  alienation  or  even  separation  without  altering  the 
fact  of  the  relationship."  x  If  marriage  were  a  mere  con- 
tractual relation,  an  artificial  partnership,  it  would  be  termin- 
able not  only  by  a  failure  to  achieve  its  object,  but  even 
more  equitably  by  mutual  consent ;  because  it  is  consti- 
tuted in  the  order  of  nature,  and  not  only  at  the  will  of  the 
parties,  it  is  indissoluble  except  by  an  event  equally  in  the 
order  of  nature  ;  and  this  can  be  found  only  in  death.  By 
virtue  of  nothing  short  of  this  can  the  husband  cease  to  be 
husband,  or  the  wife  cease  to  be  wife. 

Against  this  conception  of  marriage  as  naturally  indis- 
soluble is  set  the  general  practice  of  mankind  allowing  its  dis- 
solution for  certain  causes,  and  the  marriage  of  the  separated 
husband  and  wife  to  fresh  partners.  So  profoundly  has 
this  practice  affected  the  customary  morality  of  human 
society,  that  grave  doubts  have  been  entertained  whether 
marriage  should  be  regarded  as  indissoluble  by  natural  law, 
and  not  rather  as  made  indissoluble  by  positive  enactment. 
Oppressed  by  the  precedents  of  the  Old  Testament  and  by  his 

1  D.  Macfadyen,  The  Messenger  of  God,  p.  93. 


INDISSOLUBLE  EXCEPT  BY  DEATH          19 

respect  for  that  Roman  jurisprudence  which  asserted  with 
the  utmost  solemnity  the  perpetual  obligation  of  natural  law, 
St.  Augustine  taught  that  only  in  the  civitas  Dei,  or  Christian 
commonwealth,  was  this  quality  impressed  on  the  union  of 
man  and  wife  ;  in  the  natural  order  they  might  separate,  as 
allowed  by  Roman  law,  and  contract  fresh  marriages ; 
entering  into  the  Church,  they  lost  this  liberty,  being  more 
straitly  conjoined  by  virtue  of  the  sacramental  efficacy  given 
to  the  natural  institution.1  His  opinion  has  had  immense 
effect  on  Christian  teaching,  but  he  was  not  entirely  con- 
sistent with  himself ;  in  discussing  St.  Paul's  directions 
about  separation  from  an  unbelieving  consort  he  definitely 
treated  the  presumably  pagan  marriage  as  debarring  the 
Christian  party  from  any  fresh  union,2  and  as  being  therefore 
fundamentally  indissoluble.  If  it  were  not  so,  the  Christian 
party,  repudiated  by  the  other,  would  be  free  to  marry,  and 
this  interpretation  of  St.  Paul's  teaching  has,  in  fact,  been 
accepted  by  modern  theologians. 

The  natural  law  being  thus  called  in  doubt,  we  look  for 
guidance  to  the  evangelic  revelation.  It  will  be  seen  that 
two  questions  are  raised  :  (a)  Whether  it  is  permissible  for 
husband  or  wife  on  any  account  to  withdraw  from  the  close 
union  which  is  marriage  ;  and  (b)  if  this  be  allowed,  whether 
the  marriage  is  thereby  dissolved  so  that  the  parties  are  free 
to  enter  into  fresh  unions.  Such  separation  is  properly 
called  divorce,  whether  it  implies  dissolution  of  the  mar- 
riage bond  or  not ;  it  is  only  by  an  abuse  of  language 
that  the  word  is  otherwise  defined.  We  have  to  ascej 
then,  from  the  teaching  of  the  Gospel,  wnether  divorce 
is  permissible ;  in  what  cases  it  may  be  allowed,  if 

1  See  especially,  De  nuptiis  et  concupiscentia,  i.  10.     Observe  also 
that  he  objected  to  making  marriage  after  divorce  a  bar  to  baptism. 
De  Fide  et  Operibus,  19. 

2  De  adulterinis  eoniugiis,  i,  25. 


20  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

at  all ;    and  whether  it  effects  a  dissolution  of  marriage. 

St.  Paul's  ruling  is  peremptory.  Replying  to  specific 
questions  put  to  him  from  Corinth,  he  wrote  :  "To  the 
married  I  give  commandment — not  I,  but  the  Lord — that  a 
wife  is  not  to  be  separated  from  her  husband  (but  if  she  be 
separated  let  her  remain  unmarried,  or  be  reconciled  to  her 
husband),  and  that  a  husband  is  not  to  put  away  his  wife." 
So  far,  no  exception  of  any  kind  is  allowed  ;  in  the  case 
where  separation  has  de  facto  taken  place,  a  fresh  marriage 
is  forbidden.  A  little  later,  he  answers  a  question  about 
the  remarriage  of  widows,  which  he  allows,  but  with  reiter- 
ation of  the  principle  that  the  bond  cannot  be  dissolved  while 
the  parties  are  both  alive. 

But  here  comes  in  the  one  exception,  commonly  known 
as  the  privilegium  Paulinum.  It  is  introduced  by  the  phrase, 
"  To  the  rest  say  I,  not  the  Lord."  Who  are  these  ?  He 
has  addressed  two  classes,  the  unmarried  and  widows,  whom 
he  advises  to  remain  unmarried  ;  the  married,  whom  he 
warns  against  divorce.  So  difficult  it  is  to  find  a  third  class, 
that  some  have  referred  the  words  in  question  to  the  former 
of  these  classes,  as  though  he  said,  "  To  the  married  I  forbid 
divorce  in  the  Lord's  name,  but  to  those  others  I  only  give 
my  own  advice."  The  construction  of  the  whole  passage, 
however,  does  not  favour  this  interpretation,  and  the  phrase 
seems  clearly  to  be  an  introduction  to  what  follows.  There  is 
then  a  third  class  of  those  who  do  not  belong  to  either  of  the 
previous  categories.  It  is  plain  who  they  are.  They  are 
Christian  men  or  women,  mated  with  unbelieving  consorts. 
They  seem  to  be  set  in  a  class  apart  because  the  Apostle 
addresses  none  but  believers,  and  therefore,  when  he  speaks 
to  the  married,  he  has  in  view  those  cases  only  in  which  both 
parties  are  Christian  ;  for  these  others  there  is  something 
else  to  be  said.  But  now  he  answers  the  question  put  to  him 
1  i  C«r.  vii.  10— ii. 


MARRIAGE  AFTER  DIVORCE  si 

on  his  own  authority,  not  alleging  any  express  teaching  of 
the  Lord.  "  If  a  brother  has  an  unbelieving  wife,"  he  says, 
"  and  she  consents  to  live  with  him,  let  him  not  put  her 
away ;  and  a  wife  who  has  an  unbelieving  husband,  and  he 
consents  to  live  with  her,  let  her  not  put  him  away.  .  .  .  But 
if  the  unbelieving  party  makes  separation,  let  it  be  so  ;  the 
brother  or  the  sister  is  not  enslaved  in  such  cases." 

Such  is  the  Apostle's  ruling,  divested  of  the  arguments 
with  which  he  pleads  for  its  acceptance.  Its  meaning  is 
quite  clear,  but  those  arguments  are  helpful  to  a  fuller  under- 
standing, since  they  suggest  the  form  of  the  question  which 
he  was  answering.  There  was  probably  a  definite  rule  that 
Christians  should  marry,  as  he  casually  remarks  lower  down, 
"  only  in  the  Lord  "  ;  what  was  the  duty  of  converts  already 
married  whose  consorts  remained  unbelieving  ?  Should  the 
marriage  stand,  or  should  they  take  advantage  of  the  law 
which  allowed  divorce  ?  St.  Paul  replies  that  "  the  unbeliev- 
ing husband  is  sanctified  in  his  wife,  and  the  unbelieving  wife- 
is  sanctified  in  the  brother."  The  marriage  may  therefore 
stand.  The  Christian  party  is  not  merely  allowed  to  con- 
tinue in  this  union,  but  is  forbidden  divorce.  If,  however, 
the  unbelieving  party  effect  a  divorce,  no  steps  need  be 
taken  to  hinder  it.  What  steps  could  be  taken  ?  St.  Paul 
probably  has  in  mind  the  case  of  the  unbeliever  demanding, 
as  a  condition  of  continued  wedlock,  something  inconsis- 
tent with  the  profession  of  a  Christian.  A  Christian  is  not 
a  slave,  he  protests.  The  question  remains  whether  the 
Christian  party,  being  so  divorced,  is  free  to  marry.  St. 
Augustine,  as  above  noted,  says  not.  The  contrary  opinion 
has  generally  prevailed,  but  it  rests  on  the  supposition  that 
marriage  is  not  naturally  indissoluble,  which  we  are  now 
examining.  The  Apostle  himself  gives  no  ruling,1  and  it  is 

1  It  is  impossible  that  SeSpvAomu,  v.  15,  should  be  equivalent  to 
v.  39, 


22  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

probable  therefore  that  he  leaves  this  special  case  under  the 
general  rule  that  a  wife  separated  from  her  husband  must 
remain  unmarried. 

What  St.  Paul  taught  the  Corinthians  in  reply  to  an  ex- 
press question,  he  wrote  also  more  at  large  in  his  epistle  to 
the  Romans.  "  Do  you  not  know,  brethren  (for  I  speak  to 
men  who  know  law),  that  the  law  has  dominion  over  man  so 
long  as  he  lives  ?  For  the  married  woman  is  bound  by  law 
to  her  living  husband,  but  if  the  husband  die  she  is  discharged 
from  the  law  of  her  husband.  So  then,  while  the  husband 
lives,  she  will  be  called  adulteress  if  she  be  joined  to  another 
man  ;  but  if  her  husband  be  dead,  she  is  free  from  the  law, 
so  as  not  to  be  an  adulteress  when  joined  to  another  man."  l 
It  should  be  observed  that  the  Apostle  is  here  appealing  to 
a  known  principle,  in  illustration  of  an  argument  concerned 
with  other  matters.  There  was  a  recognized  Christian  law. 
Was  this  peculiarly  Christian,  or  was  it  the  natural  law  rein- 
forced by  Christian  teaching  ?  It  rested  on  a  saying  of  the 
Lord,  currently  reported  among  the  faithful.  For  further 
elucidation,  that  saying  must  be  identified. 

Such  a  saying  is  recorded  in  four  places  of  the  canonical 
Gospels,  two  of  which  are  clearly  identical ;  the  others  are 
in  a  separate  setting. 

In  the  tenth  chapter  of  St.  Mark  and  the  nineteenth  of  St. 
Matthew  is  the  story  of  the  Pharisees  who  put  to  our  Lord 
the  test  question  whether  it  was  lawful  for  a  man  to  divorce 
his  wife  ;  St.  Matthew  adds  the  particular  that  they  asked 
whether  it  were  lawful  "  for  every  cause,"  glancing  at  the 
later  practice  of  the  Jews.  He  answered  by  a  reference  to  the 
primary  institution  of  marriage,  by  which  man  and  woman 
become  "  one  flesh,"  deducing  the  consequence,  "  What 
God  joined  together  let  not  man  put  asunder."  Confronted 
with  the  Mosaic  legislation  about  divorce,  He  replied  that 
1  Rom.^vii.  1-3. 


MARRIAGE  AFTER  DIVORCE  23 

this  was  allowed  because  of  men's  hard-heartedness,  which 
has  been  variously  interpreted  to  mean  their  stubborn  refusal 
to  follow  the  divine  ideal  or  the  harshness  with  which  they 
would  treat  a  wife  who  could  not  be  dismissed.  Then  follows 
a  gnomic  saying  which  St.  Mark  reports  to  have  been  deliv- 
ered in  private  to  the  disciples  as  a  further  instruction,  and 
which  is  also  recorded,  without  note  of  time,  elsewhere  in  St. 
Matthew  and  in  St.  Luke.  It  cannot  be  doubted  that  this 
was  the  saying  of  the  Lord  to  which  St.  Paul  referred.  It 
will  be  well  to  place  side  by  side  the  forms  in  which  it  is 
recorded,  with  verbal  variations. 

Matthew  v.  32.  Every  man  divorcing  his  wife,  apart  from 
the  cause  of  fornication,  makes  her  commit  adultery  ;  and 
whoever  marries  a  divorced  woman  commits  adultery. 

Matthew  xix.  9.  Whoever  shall  divorce  his  wife,  unless 
for  fornication,  and  marry  another,  commits  adultery  ;  and 
he  who  marries  a  divorced  woman  commits  adultery.1 

Mark  x.  n.  Whoever  shall  divorce  his  wife  and  marry 
another,  commits  adultery  against  her  ;  and  if  she,  after 
divorcing  her  husband,  marry  another,  she  commits  adul- 
tery. 

Luke  xvi.  18.  Every  man  divorcing  his  wife  and  marry- 
ing another  commits  adultery  ;  and  a  man  marrying  a 
woman  divorced  from  her  husband  commits  adultery. 

It  is  to  be  observed  that  this  teaching  of  our  Lord  is 
expressly  based  on  the  natural  institution  of  marriage.  He 
is  not  giving  a  new  law  to  Christians.  He  is  enforcing  and 
explaining  the  natural  law  which  had  been  corrupted  through 
man's  hard-heartedness.  On  this  ground  divorce  is  expli- 
citly forbidden  ;  and  further,  if  divorce  takes  place  de  facto, 
marriage  of  the  divorced  is  forbidden  as  involving  the  guilt 
of  adultery.  That  is  to  say,  in  spite  of  divorce  the  natural 

1  The  text  of  this  passage  is  doubtful,  but  not  in  any  particular 
seriously  affecting  the  sense. 


24  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

relation,  the  vinculum,  remains  intact.  If  it  were  not  so, 
union  with  a  divorced  woman,  however  strongly  condemned 
on  other  grounds,  could  not  be  called  adultery.  It  is  adul- 
tery, and  therefore  the  previous  marriage-bond  remains 
unbroken. 

The  one  except ed  case  calls  for  brief  consideration.  It  is 
peculiar  to  St.  Matthew.  But  further,  it  contrasts  re- 
markably with  the  general  manner  of  our  Lord's  teaching. 
Wilhelm  Bousset  has  remarked  with  justice  on  His  practice 
of  laying  down  the  commandment  of  God  in  all  its  absolute- 
ness in  face  of  the  endless  distinctions  and  exceptions  which 
made  the  system  of  the  Pharisees.1  There  is  no  other  ex- 
ample of  such  an  exception  in  the  Gospel ;  the  rule  of  con- 
duct is  laid  down  peremptorily,  and  whatever  exceptions  or 
economies  may  be  necessary  in  practice  are  left  to  the  con- 
science or  to  the  regulation  of  human  authority.  Bousset, 
therefore,  bluntly  rejects  this  exception  as  an  interpolation. 
There  is  no  ground,  however,  for  doubting  its  authenticity  in 
the  text  ;  but  it  is  not  improbably  a  gloss,  inserted  by  the 
evangelist,  calling  attention  to  a  practice  recognized  in  the 
Church  when  he  wrote.  The  consideration  of  its  meaning 
may  therefore  be  defended  until  we  come  to  speak  of  mar- 
riage in  relation  to  human  law.  It  is  sufficient  to  say  here 
that  the  except  ed  cause  justifies  only  the  separation  of  hus- 
band and  wife  ;  it  is  interjected  parenthetically  for  this  pur- 
pose, and  does  not  affect  the  subsequent  judgment  that  the 
marriage  of  the  divorced  is  adulterous.  An  exact  compari- 
son of  the  second  passage  from  St.  Matthew  with  the  cor- 
responding citation  from  St.  Mark  makes  this  abundantly 
clear.  So  it  was  understood  without  hesitation  by  all  Chris- 
tian writers  commenting  on  the  words,  until  the  entangle- 
ment of  the  Church  with  the  Empire  in  the  fourth  century 

1  Bousset,  Jesus,  p.  144  (Engl.  transl.). 


EFFECTED  BY  CONTRACT  25 

moved  men  to  find  some  common  ground  for  Christian 
teaching  and  Roman  law.  Those  who  held  the  general 
opinion  that  our  Lord  expressly  sanctioned  the  divorce  of 
an  adulterous  wife,  and  those  who  held,  as  Hermas,1  that  it 
was  even  sinful  to  cohabit  with  her,  nevertheless  emphati- 
cally declared  that  the  husband  dismissing  her  would  himself 
be  guilty  of  adultery  if  he  married  another.  The  bond  of 
marriage,  that  is  to  say,  remains  unbroken  by  divorce. 
Moreover,  this  teaching  is  grounded  on  the  natural  institu- 
tion of  marriage.  Marriage  is  therefore  indissoluble  in  the 
order  of  nature. 

This  intimate  and  indissoluble  union  of  man  and  woman 
is  effected  by  means  of  a  contract.     Since  two  individual 
lives  are  to  coalesce  in  one,  without  prejudice  to  the  true 
personality  of  either  party,  they  must  come  together  by  a 
free  act  of  mutual  surrender  and  acceptance.     The  hus- 
band, says  St.  Paul,  does  not  retain  full  control  of  his  own 
body,  nor  the  wife  of  hers  ;   an  abnegation  which  would  be 
intolerable,  and  even  immoral,  on  any  other  basis  but  that 
of  mutual  consent.     This  free  contract  of  marriage,  pro- 
perly called  the  wedding  of  man  and  woman,  is  more  or 
less  recognized  in  all  forms  of  civilization  ;    but  the  pre- 
dominance of  the  male,  and  the  imperfect  freedom  of  the 
unmarried  woman,  usually  make  it  a  one-sided  affair  ;   yet 
even  marriage  by  capture,  which  is  common  to  many  savage 
races  and  curious  vestiges  of  which  linger  in  others  of  the 
most  highly  developed  culture,  differs  from  mere  rape  in 
assuming  the  contented  acquiescence  of  the  prey  ;  indeed, 
the  analogous  habits  of  the  brute  creation  suggest  that  the 
foray,  real  or  pretended,  looks  not  so  much  to  the  bride 
herself  as  to  the  males  of  her  tribe  from  whom  she  is  stolen/' 
It  is  not  here,  however,  but  in  a  state  of  complete  civili- 
zation, that  we  must  seek  evidence  of  the  true  nature  of  the 
1  Pastor,  Mand.,  iv.,  i. 


26     OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

marriage  contract.  Even  in  Roman  law,  despite  the  sub- 
jugation of  children  in  patria  potestate,  it  was  agreed  that 
marriage  was  effected  by  the  consent  of  the  parties.1 

Other  systems  of  law  also  require  the  consent  of  parents 
to  the  marriage  of  a  man  or  woman  below  a  certain  age, 
and  it  is  difficult  to  say  whether  in  the  absence  of  such  con- 
sent the  marriage  is  naturally  void.  The  subjugation  of 
young  children  to  their  parents  is  unquestionably  natural 
for  so  long  a  time  as  is  required  for  their  preservation,  but 
no  fixed  limit  can  be  set ;  the  age  of  independence  defined 
by  positive  law  is  merely  artificial.  It  is  generally  allowed 
that  consent  of  wedlock  should  be  considered  naturally 
possible  as  soon  as  the  parties  are  of  an  age  to  fulfil  the 
marriage  contract.  If,  however,  it  can  be  shown  that  mar- 
riage at  so  early  an  age  is  injurious  to  the  individual  or  to 
the  race,  it  may  seem  that  natural  law  imposes  further 
restraint ;  and  a  marriage  contracted  in  defiance  of  such 
restraint  may  be  held  naturally  void. 

A  similar  argument  may  possibly  establish  restraint  of 
marriage  between  persons  who  for  lack  of  bodily  or  mental 
health  are  unable  to  fulfil  the  ordinary  obligations  of  marri- 
age, to  rear  and  educate  children,  and  to  render  the  mutual 
services  implied  in  the  holy  estate  of  matrimony.  It  may 
be  held  that  such  persons  are  naturally  incapable  of  enter- 
ing upon  a  contract,  the  terms  of  which  they  are  naturally 
incapable  of  fulfilling.  It  is  evident  that  a  growing  know- 
ledge of  nature  may  bring  with  it  a  more  accurate  percep- 
tion of  natural  law,  and  refinements  of  this  kind  are  not  to 
be  rejected  as  impossible  ;  but  our  knowledge  of  human 
physiology  is  not  at  present  complete  enough  to  serve  for  the 
formulation  of  rules  in  such  matters. 

1  "  Nuptias  non  concubitus  sed  consensus  facit." — Ulpian.  in 
Tit-  de  Divers.  Reg.  lur.  Antiq.  30. 


CONDITIONS  OF  A  VALID  CONTRACT        17 

Setting  aside  these  doubtful  questions,  we  find  certain 
conditions  generally  acknowledged  as  requisite  in  a  valid 
contract  of  marriage. 

First,  genuine  marriage  must  be  intended.  A  mutual 
contract  of  man  and  woman  to  render  some  only  of  the 
offices  involved  in  marriage  would  not  be  sufficient.  It 
might  do  no  more  than  set  up  a  relation  of  concubinage, 
to  be  terminated  at  will.  It  is  not  enough  that  the  pro- 
posed relation  be  called  marriage.  If  it  be  entered  upon 
with  a  mutual  agreement  to  frustrate  any  of  the  true  pur- 
poses of  marriage,  as  for  example  to  avoid  the  procreation 
of  children,  or  to  have  no  community  of  life,  such  restrictive 
conditions  will  render  the  contract  void,  and  there  will  be 
no  marriage.  It  is  obvious  that  if  one  party  have  this 
vicious  intention,  the  other  being  privy  to  it,  there  will  be 
the  same  defect  in  the  contract.  If  the  intention  be  secret 
on  either  side,  a  difficult  question  may  arise ;  the  contract 
.-  may  be  held  good  because  of  its  openly  expressed  terms, 
but  action  taken  and  persisted  in,  such  as  refusal  to  con- 
summate the  union  or  to  cohabit,  may  betray  the  defective 
intention  and  so  nullify  the  pretended  marriage.  An 
avowed  purpose  of  continuing  the  union  only  for  a  limited 
period,  or  until  a  divorce  is  in  some  way  effected,  will  make 
the  contract  void  ;  but  a  mere  implication  of  such  purpose 
need  not  be  equally  destructive.  If  two  persons  contract 
marriage,  for  example,  in  a  society  or  under  a  system  of 
law  which  treats  the  bond  as  normally  dissoluble,  it  does 
not  follow  that  they  intend  a  merely  temporary  union  ; 
it  is  enough  that  they  purpose  marriage,  though  a  general 
opinion  which  they  themselves  share  erroneously  regards 
the  consent  as  revocable.  God  has  joined  them  together 
by  a  natural  bond,  though  it  be  supposed  that  man  can  put 
them  asunder.  Otherwise  there  would  be  no  marriage 
except  where  the  truth  of  the  indissolubility  of  marriage 


38     OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

is  known  and  received  ;  there  would  have  been  no  genuine 
marriage  among  the  Jews  or  the  other  peoples  to  whom 
the  Gospel  was  preached.  The  fact  that  from  the  first  ^ 
converts  to  the  Church  were  received  as  truly  married 
effectively  disposes  of  this  question.  Since  marriage  is  a 
natural  institution,  it  must  be  taken  that  those  who  marry 
intend  the  natural  union  with  all  its  consequences,  known 
or  unknown,  unless  any  of  these  be  expressly  excluded. 

In  the  second  place,  the  parties  must  be  physically  capable 
of  the  marriage  union.  The  man  must  have  reached 
puberty,  and  the  woman  must  be  apta  viro.  A  promise  to 
marry  might  be  made  earlier,  and  have  some  binding  force, 
as  in  the  case  of  legal  espousals  per  verba  de  futuro,  but  this 
promise  would  not  normally  constitute  marriage,  even 
if  the  parties  afterwards  came  together.  But  further,  since 
some  men  remain  always  incapable  of  the  act  of  marriage, 
or  are  incapacitated  by  artificial  means,  one  who  is  so  im- 
potent is  incapable  of  contracting  marriage  ;  if  the  im- 
potence be  discovered  after  the  verbal  contract  has  been 
made,  this  must  be  treated  as  null  and  void,  and  there  is  no 
marriage. 

In  the  third  place,  the  consent  of  the  parties  must  be  free, 
deliberate,  and  informed,  otherwise  there  is  no  true  con- 
tract ;  anything,  therefore,  which  destroys  these  conditions 
nullifies  a  contract  otherwise  valid.  An  enforced  consent 
makes  no  marriage,  even  though  the  union  be  consummated  ; 
if  either  party  was  terrorized,  by  whatever  means,  into  the 
surrender  of  the  body  and  the  verbal  expression  of  consent, 
the  contract  is  void.  An  insane  person,  again,  or  one  under 
the  influence  of  drugs,  not  having  control  of  the  will,  is  in- 
capable of  contracting  a  valid  marriage.  So  too  if  a  definite 
mistake  be  made  as  to  the  persons  contracting,  as  if  a 
man  verbally  contract  with  one  woman  supposing  her  to  be 
another  woman,  this  contract  also  is  void.  These  limita- 


CONDITIONS  OF  A   VALID  CONTRACT        29 

tions  are  not  imposed  by  positive  human  law  ;  they  are 
inherent  in  the  nature  of  things,  rendering  an  apparent 
consent  unreal. 

Fourthly,  the  parties  must  both  be  free  of  any  other  tie 
of  wedlock.  This  follows  from  the  unity  and  the  indissolu- 
bility  of  marriage  ;  a  person  already  married  cannot  con- 
tract a  new  marriage.  It  is  allowed  in  practice  that  when 
one  party  of  a  marriage  has  disappeared  and  has  not  been 
heard  of  for  some  years,  the  other  party  may  be  held  free 
to  marry,  but  this  on  the  ground  that  the  death  of  the 
missing  one  is  presumed.  It  is  sometimes  held  that  a  pre- 
contract of  marriage,  solemnly  made,  is  a  bar  to  any  other 
marriage  unless  the  parties  to  it  be  as  solemnly  released. 
This  kind  of  contract  is  recognized  in  many  systems  of  law, 
and  has  an  important  place,  under  the  name  of  Sponsalia, 
in  Canon  Law  and  Moral  Theology.  The  question  for  us 
here  is  whether  it  should  be  referred  to  Natural  Law.  In  a 
sense,  Natural  Law  must  certainly  take  cognizance  of  it,  as 
of  all  obligations  founded  on  contract.  It  is  a  contract  by 
which  the  parties,  in  some  cases  through  their  natural  or 
legal  guardians,  pledge  themselves  to  marry  at  some  future 
time.  It  is  not  denied  that  the  contract  is  rescindible, 
either  by  mutual  consent,  or  even  by  one  party  where  con- 
ditions make  its  fulfilment  improper ;  but  about  its  effect 
while  subsisting  there  is  much  dispute.  Each  party  is  under 
a  natural  obligation  to  marry  when  called  upon  to  do  so, 
and  is  therefore  precluded  from  contracting  any  other 
marriage  ;  but  is  there  set  up  a  natural  status  which  will 
render  such  marriage  void,  if  attempted  ?  The  precon- 
tract is  the  preliminary  6771/770-*?  of  Athenian  law,  which 
was  considered  an  indispensable  feature  of  the  marriage 
contract.  In  Roman  law  the  sponsalia  were  not  essential, 
and  it  was  possible  to  proceed  direct  to  marriage ;  but, 
both  in  this  system  and  in  the  Christian  practice  derived 


30     OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

from  it,  these  espousals  de  futuro  followed  by  the  carnal 
union  of  the  parties  have  been  held  to  constitute  true  mar- 
riage. This  effect,  however,  may  be  referred  to  a  contract 
of  present  marriage  presumed  as  implicit  in  the  act  of  union,, 
and  thus  it  is  not  necessary  to  give  the  espousals  the  char- 
acter even  of  inchoate  marriage.  On  the  whole,  it  seems 
best  to  conclude  that  in  the  order  of  nature  espousals  de 
futuro  set  up  nothing  but  an  obligation,  the  breach  of  which 
is  an  offence  against  justice,  but  which  does  not  render  the 
person  so  bound  incapable  of  marriage  with  a  third  party. 
The  marriage  is  to  be  condemned,  but  is  not  to  be  set  aside 
as  void. 

Lastly,  persons  nearly  akin  to  each  other  are  incapable 
of  intermarrying.  It  is  not,  however,  certain  what  near- 
ness of  kindred  constitutes  a  natural  bar  to  marriage.  The 
practice  of  mankind  has  varied  from  a  rule  of  strict  exogamy, 
requiring  the  parties  to  be  of  different  tribes,  to  the  point  of 
allowing  marriage  between  a  brother  and  a  sister  of  the  full 
blood.  At  the  same  time  the  observance  of  whatever  rule 
is  adopted  has  usually  been  enforced  under  sanctions 
which  imply  a  remarkable  degree  of  natural  repulsion  from 
the  forbidden  unions.  The  definite  horror  of  incest,  which 
seems  indestructible  even  in  the  most  decayed  civilization, 
has  its  roots  deep  in  human  nature.  Attempts  have  been 
made  to  find  a  physiological  basis  for  prohibitions  of  this 
kind,  but  without  success  ;  a  general  belief  that  injurious 
effects  are  found  in  the  offspring  of  the  forbidden  unions 
is  not  universally  verified  in  experience,  and  it  is  probably 
the  result  rather  of  a  religious  dread  than  of  actual  obser- 
vation. It  seems  to  be  a  certain  conclusion  of  biology  that 
the  human  race  is  descended  from  a  single  ancestor  differen- 
tiated by  one  of  the  greater  variations  that  appear  spontan- 
eously in  breeding.  If  this  be  so,  the  unity  of  the  race 
could  be  preserved  in  the  first  instance  only  by  the  closest 


CONDITIONS  OF  A  VALID  CONTRACT        31 

interbreeding,  and  it  is  impossible  to  refer  the  prohibitions 
in  question  to  these  beginnings.  But  the  natural  consti- 
tution of  society,  as  we  have  had  occasion  to  observe,  is 
not  to  be  found  in  the  first  stages  of  human  life.  It  is  found 
rather  in  that  to  which  human  life  tends,  in  accordance 
with  the  thought  of  the  Creator.  At  what  stage  in  the 
history  of  the  race  the  restriction  of  in-breeding  began,  it 
is  impossible  even  approximately  to  ascertain.  The  savage 
tribes  which  practise  exogamy,  it  must  be  repeated,  are 
not  primitive.  They  have  an  unrecorded  past  in  which 
vast  changes  have  probably  taken  place.  But  the  restric- 
tion, in  one  form  or  another,  has  become  a  constant  factor 
of  social  order.  Marriage  with  a  sister  of  the  half-blood, 
as  recorded  of  Abraham,  or  of  the  full  blood  as  practised  in 
some  communities  more  civilized  than  those  of  the  Semitic 
nomads,  has  been  held  on  high  authority  to  be  forbidden 
by  natural  law  { ;  but  it  is  difficult  to  maintain  this  opinion 
in  view  of  the  fact  that  such  marriage  would  be  necessary 
at  the  beginnings  of  the  human  race ;  still  less  will  a  more 
remote  kinship  be  a  bar  ;  the  one  kind  of  union  that  seems 
to  be  certainly  excluded  is  that  between  a  man  and  a  woman 
related  in  the  direct  ascending  and  descending  line.  If 
this  be  so,  and  the  question  is  one  of  great  difficulty,  all 
other  prohibitions  must  be  referred  to  human  law,  being 
imposed  for  the  better  safeguarding  of  the  family. 

What  has  been  said  above  as  to  the  relation  of  affinity 
draws  with  it  the  inevitable  consequence  that  the  natural 
restriction  of  marriage  applies  no  less  to  persons  allied  in 
this  way  than  to  those  related  in  blood.  This  obvious  con- 
clusion is  fortified  by  the  remark  of  St.  Paul  that  union  be- 
tween a  man  and  his  father's  wife  was  regarded,  apart  from 

1  The  authorities  are  collected  with  characteristic  erudition  in 
the  Rev.  Father  Puller's  Marriage  with  a  Deceased  Wife's  Sister 
forbidden  by  the  Laws  of  God  and  of  tht  Church. 


32  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

any  special  sanction  of  Christianity,  as  a  thing  not  to  be 
heard  of.1  That  is  to  say,  it  was  an  offence  against  natural 
law  and  against  natural  religion. 

These  five  conditions,  then,  are  required  for  a  valid  con- 
tract of  marriage.  The  parties  must  intend  true  marriage  ; 
they  must  be  physically  capable  ;  they  must  be  acting 
freely,  under  no  constraint  and  under  no  mistake ;  they 
must  be  subject  to  no  previous  bond  of  marriage  ;  and  they 
must  not  be  too  near  akin. 

The  contract  thus  made  is  fulfilled  in  the  actual  union  of 
the  parties,  which  is  called  consummation  of  marriage.  A 
man  and  a  woman  who  have  contracted,  but  not  consum- 
mated marriage,  are  in  an  abnormal  position  as  to  which 
the  natural  law  affords  no  guidance,  but  for  which  human 
law  must  provide  in  case  of  need.  Those  who  have  con- 
tracted and  consummated  marriage  enter  upon  a  new  state 
of  life,  determined  by  nature.  The  state  of  marriage  is  not 
a  contractual  state ;  the  bond  is  not  a  contractual  bond. 
The  contract  is  only  the  instrument  by  which  the  state  of 
marriage  is  brought  about.  It  is  not  a  continuing  contract, 
subject  to  revision,  or  capable  of  being  rescinded  with  due 
regard  for  law  by  agreement  of  the  parties  interested.  It 
is  completed  by  consummation.  Thenceforward  the  rela- 
tions of  the  parties  are  determined,  not  by  contract,  but  by 
law,  divine  and  human ;  they  are  bound  to  the  fulfilment 
of  their  mutual  duties,  not  by  their  own  consent,  but  by  a 
natural  obligation. 

The  extent  of  the  obligation  is  determined  by  the  purpose 
of  marriage.  It  is  an  obligation  to  live  together  for  life  in  a 
perfect  union  of  equal  partnership  for  the  procreation  and 
nurture  of  children,  for  mutual  support  and  comfort  in  good 
and  evil  estate,  and  for  the  right  ordering  of  the  family. 

1  i  Cor.  v.  i.  The  reading  ovo/xa&rai  seems  to  be  a  valid  gloss, 
looking  back  to  d/coverou. 


THE   SANCTION  OF  CONSCIENCE  33 

Nature  seems  to  assign  a  certain  headship  to  the  man,  which 
St.  Paul  with  great  boldness  likens  to  the  headship  of  Christ 
in  the  Church,  but  this  implies  no  dominion.  It  is  not  by 
natural  law,  but  by  a  gross  corruption  of  human  law,  that 
a  wife  is  regarded  as  the  chattel  of  her  husband.  St.  Paul 
qualifies  the  submission  and  reverence  of  the  wife  by  the 
implication  of  perfect  equality  involved  in  bidding  men 
love  their  wives  as  their  own  bodies.  In  regard  to  the  essen- 
tial act  of  the  marital  relation,  he  insists  that  the  wife  has 
the  same  right  over  her  husband's  body  that  the  husband 
has  over  the  wife.  In  the  First  Epistle  of  St.  Peter,  the 
comparative  weakness  of  the  woman,  though  naturally  and 
inevitably  pointing  to  some  normal  measure  of  subjection, 
is  expressly  made  the  ground  for  honourable  regard.1 

The  divine  law  of  nature  assumes  obedience.  It  is  de- 
signed for  men  who  live  according  to  the  will  of  the  Creator. 
Sin,  and  the  perversity  of  nature  consequent  on  sin,  disturb 
the  sublime  order  thus  demanded,  and  there  is  in  the  divine 
law  no  invocation  of  force  to  compel  submission.  Its 
sanction  is  moral ;  its  appeal  is  to  conscience.  There  are 
terrors,  but  remote  ;  there  are  consequences  of  ill-doing, 
but  they  are  obscure  in  movement.  Law  is  not  necessity. 
Some  confusion  of  thought  is  induced  by  the  common  appli- 
cation of  the  word  to  those  sequences  of  cause  and  effect 
in  which  no  free  action  of  will  is  discernible.  It  may  be 
that  we  are  mistaken  in  thinking  even  of  wind  and  storm 
as  fulfilling  God's  word  with  lifeless  precision ;  there  may 
be  agents  working  with  the  thundercloud  as  men  work 
with  the  harnessed  forces  of  nature.  Where  men  are  con- 
cerned there  is  certainly  a  measure  of  freedom,  known  in 
act  though  undetermined  in  extent.  In  marriage,  there- 
fore, as  in  all  moral  action,  human  practice  does  but 
approximate  to  the  perfection  of  the  divine  law. 

1  Eph.  v.  22-8  ;    i  Cor,  vii.  4  ;    i  Pet.  iii.  1-7. 

M,C,S.  D 


34  OF  MARRIAGE  IN  THE  ORDER  OF  NATURE 

That  law  may  be  known  by  interrogation  of  nature. 
But  the  knowledge  so  achieved  is  imperfect,  being  at  the 
best  sought  by  long  labour  and  preserved  in  the  accumula- 
tion of  human  tradition.  It  is  also  precarious,  being  partly 
obscured  and  partly  distorted  by  passion  and  self-will. 
It  is  increased,  and  it  is  also  cleared  of  false  accretions,  by 
the  plain  teaching  of  the  Gospel,  in  which  God  Himself  makes 
known  some  of  the  more  secret  passages  of  Kis  Will.  Chris- 
tians therefore  have  in  the  tradition  of  the  Church  a  fuller 
exposition  of  the  divine  law  of  marriage,  as  it  is  in  the  order 
of  nature,  than  can  be  found  elsewhere.  Christian  marriage 
is  not  a  particular  kind  of  marriage,  though  there  is  super- 
added  to  the  marriage  of  Christians  a  certain  quality,  next 
to  be  considered,  by  which  it  becomes  sacramental.  There 
is  not  a  less  perfect  marriage  common  to  all  men,  and  a  more 
perfect  marriage  proper  to  Christians.  Marriage  is  true 
marriage  alike  in  the  Christian,  in  the  pagan,  and  in  the 
creedless  theist  or  atheist  who  has  renounced  Christianity. 
In  so  far  as  marriage  is  better  ordered  in  Christendom,  it 
is  only  as  Christians  know  and  observe  more  fully  than 
other  men  the  natural  law  of  marriage.  In  so  far  as  modern 
civilized  man  has  any  advantage,  it  is  because  he  has 
acquired,  from  theology  and  physiology  alike,  more  insight 
into  the  working  of  nature.  To  break  away  from  the  Chris- 
tian tradition  is  not  to  return  to  nature ;  it  is  to  fall  back 
upon  a  less- developed  knowledge  of  nature. 

The  duty  of  a  Christian  man  is  plain.  He  is  to  bring 
his  conscience  to  bear  upon  what  he  knows  of  the  divine 
law,  and  to  regulate  his  own  conduct  thereby.  He  is  to 
contract  marriage  only  as  it  is  allowed  by  the  law  of  God, 
and  to  li ve  in  this  holy  estate  as  becomes  one  who  has  learnt 
its  deeper  meaning.  He  will  bear  in  mind  the  purpose  of 
the  union,  and  will  do  nothing  to  frustrate  that  purpose  by 
interference  with  the  course  of  nature ;  he  will  beget  chil- 


THE  DUTY  OF  A  CHRISTIAN  MAN  35 

dren  and  cheerfully  undertake  the  burden  of  their  nurture. 
He  will  make  a  temperate  use  of  marriage,  and  will  be 
sparing  in  his  demands  upon  his  partner.  He  will  treat 
that  partner  with  equal  honour  both  in  public  and  in 
private,  and  share  as  completely  as  possible  all  good  and 
adverse  fortune. 

The  duties  of  husband  and  wife  are  correlative,  and  each 
has  to  contribute  in  equal  measure  to  the  achievement  of  a 
perfect  marriage.  But  the  instructed  Christian  has  to  do 
more  than  present  an  example  of  the  life  that  is  according 
to  nature  in  a  single  family.  Human  life  is  necessarily 
organized  on  a  large  scale.  The  Christian  has  to  maintain 
the  cause  of  marriage  in  the  nation  as  well  as  in  his  own 
household.  His  conscience  is  not  engaged  in  what  other 
men  do,  but  he  is  bound  both  to  support  others  in  doing 
right  and  in  upholding  the  general  good  of  society.  Know- 
ing the  importance  of  marriage,  he  will  do  his  utmost  to 
prevent  its  degradation.  But  he  will  remember  that  all 
men  have  not  the  same  knowledge,  that  many  defects  in 
the  ordering  of  this  holy  estate  are  to  be  tolerated  because 
of  their  ignorance  or  the  hardness  of  their  hearts.  He  will 
not  be  too  ready,  either  by  legislation  or  by  pressure  of 
social  opinion,  to  force  on  other  men  observances  to  which 
their  own  conscience  does  not  call  them.  He  will  be  much 
sterner  in  his  judgment  of  a  fellow  Christian  than  in  his 
intercourse  with  those  without  the  Church.  He  will  bring 
all  things  to  the  standard  of  the  law  of  God,  refusing  to 
abate  any  demand,  or  to  recognize  any  lower  ideal ;  but 
he  will  allow  that  personal  deflections  from  the  right  way 
do  not  always  involve  personal  guilt.  In  a  word  he  will 
uphold  the  truth  of  nature,  but  in  social  intercourse  he  will 
tolerate  much  that  is  false,  and  will  frankly  recognize  as 
living  together  in  good  faith  and  without  blame  many  whom 
be  knows  to  be  united  by  no  true  marriage. 


CHAPTER    II 

Of  Marriage  in  the  Order  of  Grace 

IN  the  ritual  of  the  Church,  marriage  is  said  to  be 
ordained  for  a  remedy  against  sin.  This  seems  to  con- 
flict with  the  statement  that  it  was  instituted  in  the  time 
of  man's  innocency,  except  on  the  general  understanding 
that  by  the  economy  of  grace  things  existing  in  the  order 
of  nature  are  appropriated  to  an  use  beyond  nature.  If 
sin  be  a  perversion  of  man's  nature  so  grave  and  harmful 
that  he  cannot  by  the  exercise  of  his  natural  powers  recover 
his  normal  condition  of  spiritual  health,  it  follows  that  he 
can  be  restored  only  by  some  power  external  to  himself. 
The  practical  purpose  of  the  Christian  revelation  is  to  show 
a  power  so  working,  which  we  call  the  Grace  of  God ;  and 
since  this  exceeds  the  measure  of  man's  natural  power,  we 
call  its  operation  supernatural.  But  the  work  is  usually 
done  by  means  which  lie  within  the  order  of  nature.  The 
Saviour  of  the  world  took  human  nature  in  which  to  do 
the  work  of  redemption,  and  took  it  by  means  in  part,  at 
least,  natural.  "  Si  enim  consideremus,"  says  St.  Thomas 
Aquinas,  "  id  quod  est  ex  parte  materiae  conceptus,  quam 
mater  ministravit,  totum  est  naturale."1  In  sequence  upon 
this,  institutions  and  practices  which  formed  part  of  the 
common  equipment  of  human  life  were  taken  into  the 
redemptive  system  of  Christianity  and  established  as 
"  mysteries  of  God."  All  forms  of  religion,  all  modes  of 
1  Summ.  Theol.,  3,  33,  4. 

39 


A  GREAT  MYSTERY  37 

social  action,  were  more  or  less  tainted  with  the  effects  of 
sin  ;  but  some  of  them  were  sanctified  to  be  modes  of  the 
Christian  life  and  forms  of  the  religion  of  the  Gospel. 

Among  these  was  marriage.  Constituted  in  the  order 
of  nature,  and  remaining  as  so  constituted,  it  received  in 
addition  a  supernatural  endowment.  "  This  mystery  is 
great,"  says  St.  Paul.1  According  to  his  constant  use  of 
the  word,  he  is  thinking  of  a  dispensation  of  God,  eternal 
in  the  divine  purpose,  but  coming  to  light  only  in  the  preach- 
ing of  the  Gospel.  The  ordinance  of  nature,  "  the  two  shall 
become  one  flesh,"  is  made  an  ordinance  of  grace ;  "I 
speak,"  he  adds,  "  in  regard  of  Christ  and  of  the  Church." 
So  sacred  has  the  natural  union  become,  that  a  husband's 
love  for  his  wife  may  be  compared  with  the  love  of  Christ 
for  His  redeemed ;  men  ought  to  love  their  wives  as  their 
own  bodies,  and  as  Christ  loves  His  mystical  Body,  the 
Church.  The  figure  had  already  been  used  by  the  prophets 
to  illustrate  the  relation  of  God  to  His  chosen  people  2 ; 
St.  Paul  employed  the  comparison  rather  to  enhance  the 
solemnity  and  sanctity  of  the  estate  of  marriage. 

The  sense  in  which  he  used  the  word  ^va-r^piov  must 
be  ascertained.  It  is  not  peculiar  to  him,  though  the  word 
is  barely  found  in  other  writers  of  the  canonical  books  of 
the  New  Testament.  It  was  evidently  part  of  the  common 
Christian  language,  and  so  continued.  But,  like  almost 
all  specifically  Christian  words,  it  came  from  an  exterior 
source.  It  had  a  familiar  religious  use  in  all  lands  where 
Greek  was  spoken.  Its  origin  was  religious,  though  it  was 
passing  into  a  sense  detached  from  sacred  associations. 
Throughout  the  Greek  world,  and  especially  the  part  of 
it  in  touch  with  Asia,  Mysteries  were  religious  observances 
connected  with  the  idea  of  redemption  or  salvation  by  means 

1  Eph.  v.  32.  *  Jer.  iii.  14  ;    Hos.  ii.  19. 


38   OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

of  a  doctrine  divinely  revealed  "and  practices  divinely 
ordained.  Their  resemblance  to  the  Christian  system  is 
obvious,  and  the  first  preachers  of  the  Gospel  did  not  shrinlj 
from  the  comparison.  They  proclaimed  the  kinship  by 
speaking  of  the  Christian  Mysteries.  But  there  is  a  dif- 
ference. Christianity  was  more  than  a  specific  religious 
action ;  it  demanded  the  surrender  of  the  whole  life,  and 
all  the  details  of  life  could  be  taken  up  into  its  mysteries. 

It  is  possible  that  St.  Paul  himself  was  responsible  for  the 
general  currency  of  the  word  among  Christians.  It  seems 
to  have  been  disliked  by  the  Jews.  Philo  insisted  that 
there  were  no  mysteries  in  the  Mosaic  religion,  which  em- 
ployed only  the  most  open  and  public  methods  of  divine 
worship.  He  evidently  had  in  view  the  affected  secrecy 
of  the  mystic  rites,  and  their  restriction  to  chosen  initiates.1 
The  word  found  only  a  restricted  use  in  the  Septuagint, 
mostly  in  the  vulgar  sense  of  a  mere  secret.  In  the  Book 
of  Wisdom,  the  Mysteries  of  God  are  but  the  unsearchable 
workings  of  Providence.  It  does  not  seem  to  be  used  of 
religious  ordinances  except  in  another  passage  of  the  same 
book,  where  it  stands,  not  without  a  note  of  contempt,  for 
the  vain  imaginations  of  the  Gentile  world.2  It  is  therefore 
surprising  to  find  the  word  current  in  the  Apostolic  writings  ; 
but  however  much  its  complete  adoption  into  Christian 
language  may  be  due  to  St.  Paul,  his  free  use  of  it  without 
apology  or  explanation  shows  that  it  was  already  sufficiently 
familiar. 

Nor  is  the  word  used  loosely,  without  reference  to  its 
origin.  It  had  already  passed,  as  the  Septuagint  bears  wit- 
ness,3 into  the  vulgar  sense  of  a  mere  secret,  but  St.  Paul 

1  Philo,  TLcpl  OVOVTW,  p.  856,  ed.  1691. 

2  Wisd.  ii.  22  ;  xiv.  15,  23.     Cp.  Dan.  ii.  18  ;  Judith  ii.  2  ;  Tobit 
xii.  7. 

3  And   earlier ;    cp.   Menander,  Fragm.,  168.     pvcrrripiov   crov   ^ 

TO> 


NO  SPECIAL  SENSE  OF  SECRECY  39 

does  not  seem  to  use  it  anywhere  in  this  way.1  There  are 
not  many  indications  even  of  a  secondary  sense  of  secrecy. 
The  Christian  Mysteries  had  affinities  with  the  cults  known 
by  the  same  name  in  other  religions,  but  they  were  not 
guarded  with  the  same  affectation  of  secrecy,  nor  were  sacred 
truths  jealously  doled  out  to  recipients  in  various  stages 
of  initiation.  There  are,  indeed,  some  words  of  St.  Paul 
which  seem  to  imply  such  a  practice  :  "  We  speak  wisdom 
among  the  perfect.  .  .  .  We  speak  God's  wisdom  in  a 
mystery."  2  But  it  is  probable  that,  borrowing  the  language 
of  secret  initiation,  he  is  here  thinking  only  of  the  gradual 
training  in  the  Christian  life  which  new  converts  required ; 
he  reproaches  the  Corinthian  Christians  for  their  slow  pro- 
gress. In  the  course  of  time,  indeed,  the  habit  of  secrecy 
invaded  the  Christian  Church  ;  the  disciplina  arcani  may 
have  been  suggested  as  much  by  the  associations  of  the  Greek 
Mysteries  as  by  the  necessity  of  hiding  from  persecution. 
But  in  the  first  age  the  Christian  Mysteries  seem  to  have 
lacked  the  element  of  secrecy.  There  is  evidence  of  this  in 
the  use  of  the  Latin  word  sacramentum,  which  suggests 
nothing  of  the  kind,  to  represent  the  Greek  ^va-r^iov.  The 
earliest  translators  of  the  Scriptures  of  the  New  Testament 
employed  it  exclusively ;  the  word  mysterium,  though  well 
established  in  the  language,  and  afterwards  introduced  by 
St.  Jerome  into  his  revised  text  of  the  Bible,  was  for  some 
reason  avoided  ;  no  word  implying  secrecy  was  sought ; 
the  Christian  mysteries  became,  for  the  whole  Latin  Church 
and  its  derivatives,  sacramenta. 

This  rendering  helps  to  fix  the  meaning  of  the  original. 
The  older  Latin  literature,  indeed,  knows  no  use  of  the  word 

1  There  is  more  in  Eph.  i.  9,  though  the  sense  of  secrecy  is  there 
prominent. 

2  i    Cor.   ii.    6-7.     Account  should,  however,  be  taken  of   our 
Lord's  comment  on  His  parabolic  teaching  ;  Matt.  xiii.  14. 


40    OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

which  accounts  for  its  Christian  use,  and  it  was  probably 
drawn  from  the  popular  language.  Tertullian  and  St.  Cyprian 
employ  it  in  a  very  broad  sense  for  the  Christian  religion  in 
general,  as  well  as  in  a  narrower  sense  for  specific  religious 
observances.  St.  Augustine  seems  in  more  than  one  place 
to  make  it  exactly  equivalent  to  signum  sacrum,  and  this 
interpretation,  treated  as  a  definition  in  the  form  signum 
rei  sacrae  had  considerable  effect  on  the  development  of 
Latin  theology.  It  is  probable  that  the  sense  of  signum 
was  present,  though  less  prominent,  in  the  original  Greek 
word  as  used  by  Christians  ;  a  mystery  was  something  done 
or  said  with  a  spiritual  significance.  More  broadly,  it  was 
any  religious  observance,  whether  of  doctrine  or  of  practice, 
closely  connected  with  the  evangelic  scheme  of  salvation. 

When  marriage  thus  became  a  sacrament,  its  original 
character  was  not  changed  ;  a  new  quality  was  superadded. 
It  became,  says  St.  Augustine,  "  non  solum  vinculum,  verum 
etiam  sacramentum,"  with  the  result  that  things  formerly 
tolerable  in  its  treatment  were  now  intolerable  ;  for  instance, 
the  lending  of  a  wife  to  another  man,  which  was  reckoned 
praiseworthy  in  Cato.1  This  can  only  mean  that  the  sanc- 
tity of  the  relation  between  husband  and  wife  was  increased. 
The  selection  of  such  an  extreme  case  for  illustration  shows 
how  the  degradation  of  marriage  in  Roman  practice  affected 
St.  Augustine's  estimate  of  the  natural  union  ;  he  seems  to 
have  thought  that,  but  for  the  sacramental  character  newly 
impressed  upon  it,  such  use  of  a  husband's  rights  would  not 
have  been  blameworthy.  By  the  same  habit  of  thought, 
perhaps,  he  was  led  to  regard'  the  sacramental  character  of 
marriage  as  the  cause  of  its  indissolubility.  In  saying  that 
marriage  would  not  be  indissoluble,  "  nisi  alicujus  rei  majoris 
quoddam  sacramentum  adhiberetur,"  2  he  may  possibly 

1  De  Fide  et  Operibus,  7.  *  De  Bono  Coniugali,  7. 


THE  MEANING  OF  A  SACRAMENT  41 

have  meant  that  from  the  first  the  value  of  the  institution 
stood  in  the  anticipation  of  its  evangelic  significance  ;  but 
this,  though  in  agreement  with  much  of  his  thought,  con- 
flicts with  some  of  his  express  statements.  He  was  not,  how- 
ever, as  we  have  seen,  entirely  consistent  with  himself  on  this 
subject. 

The  "  greater  thing  "  present  to  the  mind  of  St.  Augustine 
was  unquestionably  the  union  of  Christ  and  the  Church,  with 
which  St.  Paul  compares  the  union  of  husband  and  wife  ; 
as  the  English  ritual  says,  God  has  "  consecrated  the  state  of 
matrimony  to  such  an  excellent  mystery,  that  in  it  is  signi- 
fied and  represented  the  spiritual  marriage  and  unity  betwixt 
Christ  and  His  Church. "  But  this  is  not  the  primary  sense 
in  which  marriage  is  sacramental.  A  sacrament  is  symbolic  ; 
but  it  is  not  a  sacrament  because  it  is  symbolic  ;  it  is  sym- 
bolic because  it  is  a  sacrament.  The  mysteries  of  the  king- 
dom of  heaven  have  transcendent  counterparts,  but  in  their 
primary  sense  they  are  religious  doctrines  and  practices 
connected  with  the  work  of  men's  salvation  under  the  exist- 
ing conditions  of  human  life.  The  sacrament  of  marriage 
is  an  ordinance  of  practical  Christianity. 

By  practical  Christianity  men  are  saved  from  sin.  The 
ordinances  of  practical  Christianity  are  means  of  salvation. 
What  men  sought  by  means  of  the  Mysteries  of  Eleusis  they 
obtain  by  means  of  the  Christian  Mysteries.  In  the  broad- 
est sense  of  the  term,  sacraments  are  means  of  grace.  In 
Hooker's  phrase,  they  are  "  powerful  instruments  of  God  to 
eternal  life  "  ;  not  physical  instruments,  as  he  well  distin- 
guishes, but  "  moral  instruments  of  salvation,  duties  of 
service  and  worship,  which  unless  we  perform  as  the  Author 
of  grace  requireth,  they  are  unprofitable." 1 

His  general  definition  of  the  term  can  hardly  be  improved  : 
"  A  sacrament  is  generally  in  true  religion  every  admirable 
1  Eccl.  Pol.  v.  50,  57. 


42    OF  MARRIAGE   IN  THE  ORDER  OF  GRACE 

thing  which  divine  authority  hath  taught  God's  Church 
either  to  believe  or  observe,  as  comprehending  somewhat 
not  otherwise  understood  than  by  faith."  1  For  many  agesfc 
no  attempt  was  made  to  determine  more  particularly  what 
beliefs  or  practices  should  be  recognized  as  Christian  sacra- 
ments ;  seven  were  specifically  enumerated  by  Peter  Lom- 
bard in  the  twelfth  century,  and  the  great  vogue  of  his  Liber 
Sententiamm  in  the  schools  of  the  Middle  Ages  made  this 
number  a  theological  commonplace.  The  narrowing  of  the 
term  was  due  to  the  dominance  of  the  idea  of  signum.  A 
sign  was  reasonably  interpreted  as  something  visible,  and 
those  sacred  ordinances  in  which  there  could  be  recognized 
a  visible  sign  of  sanctifying  grace  were  distinguished  as 
Christian  sacraments  in  the  more  proper  sense.  This  new 
use  of  the  term  was  arbitrary,  but  the  distinction  which  it 
enforced  was  real.  So  accurately  and  convincingly  was  it 
treated  that  even  the  Greeks,  never  too  ready  to  follow  Latin 
theologians,  adopted  the  scheme  ;  the  word  fjLvcmjpLov  could 
not  be  limited  in  use,  as  was  soon  the  case  with  the  Latin 
sac? -amentum,  but  the  Seven  Holy  Mysteries  were  set  in  a 
category  apart.  Thus  the  determination  of  seven  sacra- 
ments, peculiarly  so  called,  was  accepted  by  the  whole 
Christian- Church.  Marriage  is  one  of  the  seven. 

But  did  St.  Paul  call  marriage  a  mystery  in  this  sense  ? 
The  word  has  with  him  a  latitude  which  would  permit  a 
more  general  interpretation  :  did  he  mean  that  in  marriage 
is  conveyed  a  gift  of  grace,  saving  or  sanctifying  ?  His 
gnomic  saying  must  be  interpreted  chiefly  by  what  he  says 
elsewhere  of  marriage  and  its  effect  in  the  Christian  life, 
which  we  shall  presently  examine  ;  but  the  saying  itself  will 
yield  some  information.  The  words  TO  /jiva-Tijpiov  TOVTO  pe^a 
eo-rtV  are  significant.  They  may  be  compared  with  the 
similar  phrase,  fieya  earl  TO  rfjs  €v<re/3etas 

1  Eccl.  Pol.t  App.  I,  14.  2  i  Tim.  iii.  16. 


MARRIAGE  STRICTLY  SACRAMENTAL         43 

In  each  case  the  wording  recalls  the  familiar  distinction 
of  the  Hellenic  Mysteries  into  peydXa  and  /j,i/cpa,  and  it  is 
difficult  to  believe  that  St.  Paul  had  not  this  in  mind.  It  will 
then  follow  that  marriage,  no  less  than  the  Incarnation, 
is  to  rank  among  the  Greater  Mysteries  of  the  Christian 
faith.  Moreover,  it  is  clear  that  in  so  placing  it  he  was  on 
familiar  ground.  The  ritual  of  marriage  among  the  Greeks 
was  already  assimilated  to  that  of  the  Mysteries.  It  is  found, 
for  example,  that  the  mystic  formula,  etyvyov  icaicov  evpov 
a^eivov,  quoted  by  Demosthenes  in  the  course  of  his  bitter 
gibes  at  the  former  occupation  of  Aeschines,1  was  used  also 
in  the  ceremonies  of  marriage  ;  both  rites,  it  has  been  said, 
"  might  be  viewed  as  transitions  from  an  old  life  to  a  new  one 
presumably  better,  processes  in  which  the  initiate  renounces 
or  dies  to  the  old  and  is  reborn  in  the  new."  The  idea  of 
marriage  as  an  escape  from  evil,  we  shall  see,  was  definitely 
present  to  St.  Paul's  mind.  It  cannot  be  doubted  that  his 
words  about  the  Great  Mystery — I  quote  the  same  writer — 
"  were  in  accordance  both  in  spirit  and  in  verbal  form  with 
earlier  Hellenic  religious  custom  rather  than  with  Hebraic."  2 
There  is  therefore  no  forcing  of  his  language  when  we  take 
him  to  speak  of  marriage  as  a  mystery,  not  merely  in  some 
wide  and  general  sense,  but  in  the  special  sense  of  a  sacra- 
ment which  is  a  vehicle  of  divine  grace. 

Regarded  in  this  light,  as  a  visible  sign  of  grace,  marriage 
is  the  natural  institution,  remaining  in  its  own  nature,  but 
raised  to  a  supernatural  potency.  The  institution  consists, 
as  we  have  seen,  in  a  contract  and  its  fulfilment.  The 
mutual  surrender  of  man  and  woman,  and  the  mutual  accept- 
ance of  that  surrender,  sufficiently  constitute  the  sacrament. 
But  the  distinction  of  matter  and  form,  introduced  by  theolo- 
gians of  the  thirteenth  century  from  the  Peripatetic  philo- 

1  £te  Corona,  313. 

2  Farnell,  The  Higher  Aspects  of  Greek  Religion,  pp.  33-4. 


44  OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

sophy,  has  here  raised  some  unnecessary  questions.  The 
solution  usually  adopted  finds  the  matter  of  the  sacrament, 
or  its  indeterminate  element,  in  the  mutual  surrender  of  th£ 
bodies  of  the  parties  contracting,  while  the  determining 
form  is  sought  in  the  express  words  by  which  the  contract 
is  declared.  The  insistence  of  Canonists  on  verba  de  praesenti 
fits  in  with  this  distinction.  It  is  a  perfectly  sound  refine- 
ment, even  if  it  be  unnecessary ;  for  the  surrender  ofj  the 
body  is  common  alike  to  marriage  and.  to  illicit  intercourse, 
and  the  intention  which  makes  it  marriage  cannot  be  ade- 
quately expressed  without  words  or  their  equivalent.  An 
alternative  opinion,  however,  finds  the  matter  of  the  sacra- 
ment in  the  surrender  of  the  body  on  either  side  and  the 
form  in  the  acceptance.1 

A  sacrament  implies  a  rite.  What  is  actually  essential 
for  marriage,  it  will  be  seen  from  what  has  been  said,  is  a 
very  simple  formula  of  mutual  consent.  But  the  Church 
has  surrounded  this  with  sacred  observances,  partly  intended 
to  secure  due  publicity,  partly  designed  to  enhance  the  dignity 
and  solemnity  of  the  act.  The  origin  of  this  ritual  cannot 
be  traced,  but  a  certain  negative  conclusion  is  possible.  If 
a  ceremonial  of  marriage  had  been  adopted  for  general  observ- 
ance in  the  first  age,  it  cannot  be  doubted  that  some  defin- 
itely Jewish  features  would  have  been  woven  into  it,  as 
into  other  primitive  rituals,  and  these  would  have  survived 
or  left  traces  in  later  growths.  But  there  is  nothing  of  the 
kind.  On  the  contrary,  the  ritual  of  marriage  that  was 
finally  adopted  by  the  Church  seems  to  be  of  purely  Roman 
origin.  The  conclusion  is  inevitable,  that  existing  cere- 
monies of  marriage  were  as  far  as  possible  accepted  and  con- 

1  Billuart,  Summa  Summae,  vol.  vi,  p.  345.  He  argues  ingeni- 
ously from  the  nature  of  a  contract  in  general,  that  an  offer  of 
anything  is  formless  and  inderteminate,  until  it  is  clenched  by 
acceptance. 


THE  RITE  45 

tinued  among  Christians  ;  what  was  inconsistent  with  Chris- 
tian belief  and  practice  was  retrenched,  a  Christian  feature 
was  in  some  cases  substituted  for  something  intolerable, 
what  seemed  innocent  was  retained.  The  immense  exten- 
sion of  Roman  citizenship  in  the  third  century  made 
Roman  observances  general,  and  a  fairly  uniform  mode  of 
Christian  marriage  was  the  result. 

The  earliest  evidence  on  the  subject  is  found  in  the  writings 
of  Tertullian.  He  extols  the  happiness  of  a  marriage 
arranged  by  the  Church,  confirmed  by  Sacrifice,  sealed  by 
Blessing,  proclaimed  by  Angels,  ratified  by  the  Father. 
Elsewhere  he  mentions  the  nuptial  veil,  and  the  joining  of 
hands.1  St.  Gregory  Nazianzen  speaks  of  the  joining  of 
right  hands  by  a  bishop  ;  St.  Ambrose  of  the  "  sacerdotal 
veil  and  benediction  "  ;  St.  John  Chrysostom  of  the  cere- 
monial crowning,  still  retained  in  the  East,  and  of  "  lacing 
the  union  with  prayers  of  blessing  "  ;  the  Statuta  Antiqua 
Ecclesiae  of  the  presentation  of  the  parties  by  parents  or 
paranymphi,  to  be  blessed  by  a  priest.2 

These  references  are  vague,  but  they  are  illustrated  by 
forms  of  benediction  contained  in  the  most  ancient  extant 
Sacramentaries.  The  Leonine,  the  Gelasian,  and  the  Gre- 
gorian have  a  Nuptial  Mass,  with  the  usual  variants,  and  a 
long  eucharistic  prayer  of  the  ordinary  type,  to  be  said  after 
Pater  Noster  before  the  Fraction.  It  is  noteworthy  that  the 
offering  is  made  for  the  bride,  and  for  her  alone.  These  are 
not  found  in  books  of  the  Gallican  rite,  but  Duchesne  is  of 
opinion  that  the  short  benediction  Deus  Abraham,  said  before 

1  Ad  uxorem.  ii.  9.     "  Unde  sufficiamus  ad  enarrandam  felici- 
tatem  matrimonii  quod  ecclesia  conciliat,  et  confirmat  oblatio,  et 
obsignat   benedictio,  angeli  renuntiant,  Pater  rato  habet  ?  "      Cp. 
De  V eland.   Virgin,  n. 

2  Greg.  Naz.  Ep.   193  ;   Ambrose,  Ep.  19,  §  7  ;    Chrysos.    Horn. 
9  in  i  Tim.  ;    Horn.  48  in  Genes,  ad  fin.     But  he  rather  advocates 
this  than  treats  it  as  usual  or  necessary. 


46  OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

lie  missa  est  in  the  Roman  rite,  is  derived  from  a  Gallican 
source.  The  Sacrament ary  of  Bobbio  has  a  benedictio 
thalami.1 

It  is  not  until  the  ninth  century  that  we  find  a  detailed 
account  of  nuptial  ceremonies.  In  his  Responsa  ad  Bul- 
garos  Nicholas  I  sets  out  the  mode  of  celebrating  marriage, 
"  quern  sancta  ecclesia  Romana  suscepit  antiquitus." 2 
There  is  good  reason  for  believing  that  he  was  justified  in 
asserting  this,  for  in  spite  of  some  references  to  the  Old 


1  Duchesne,  Origines  du  Culte  Chretien,  ch.  xiv. 

*  "  Post  sponsalia,  quae  futurarum  sunt  nuptiarum  promissa 
foedera,  quaeque  consensu  eorum  qui  haec  contrahunt,  et  eorum 
in  quorum  potestate  sunt,  celebrantur,  et  postquam  arrhis  sponsam 
sibi  sponsus  per  digitum  fidei  a  se  annulo  insignitum  desponderit, 
dotemque  utrique  placitam  sponsus  ei  cum  scripto  pactum  hoc 
continente  coram  invitatis  ab  utraque  parte  tradiderit,  aut  mox 
aut  apto  tempore,  ne  videlicet  ante  tempus  lege  definitum  tale  quid 
fieri  praesumatur,  ambo  ad  nuptialia  foedera  perducuntur.  Et 
primum  quidem  in  ecclesia  Domini  cum  oblationibus,  quas  offerre 
debent  Deo  per  sacerdotis  manum,  statuuntur,  sicque  demum 
benedictionem  et  velamen  caeleste  suscipiunt,  ad  exemplum  vide- 
licet quo  Dominus  primos  homines  in  paradise  collocans  benedixit  eis 
dicens,  Crescite  et  multiplicamini,  etc.  Siquidem  et  Tobias,  ante- 
quam  coniugem  convenisset  oratione  cum  ea  Dominum  orasse 
describitur.  Verum  tamen  velamen  illud  non  suscipit  qui  ad 
secundas  nuptias  migrat.  Post  haec  autem  de  ecclesia  egressi 
coronas  in  capitibus  gestant,  quae  semper  in  ecclesia  ipsa  sunt 
solitae  reservari.  Et  ita  festis  nuptialibus  celebratis,  ad  ducendam 
individuam  vitam  Domino  disponente  de  cetero  diriguntur. 
Haec  sunt  iura  nuptiarum  ;  haec  sunt,  praeter  alia  quae  nunc  ad 
memoriam  non  occurrunt,  pacta  coniugiorum  sollemnia.  Peccatum 
autem  esse,  si  haec  cuncta  in  nuptiali  foedere  non  interveniant, 
non  dicimus,  quemadmodum  Graecos  vos  astruere  dicitis,  prae- 
sertim  cum  tanto  soleat  arctare  quosdam  rerum  inopia  ut  ad  haec 
praeparanda  nullum  his  suffragetur  auxilium ;  ac  propter  hoc 
sufficiat  secundum  leges  solus  eorum  consensus  de  quorum  coniunc- 
tionibus  agitur.  Qui  consensus  si  solus  in  nuptiis  forte  defuerit, 
cetera  omnia  etiam  cum  ipso  coitu  celebrata  frustrantur,  Joanne 
Chrysostomo  magno  doctore  testante,  qui  ait,  Matrimonium  non 
facit  coitus,  sed  voluntas." 


THE  RITE  47 

Testament,  the  order  of  proceeding  is  exactly  that  of  the 
most  solemn  kind  of  marriage  known  to  the  ancient  Roman 
law,  or  Confarreatio.  Abandoned  by  almost  all  others 
before  the  end  of  the  second  century,  this  solemnity  seems 
to  have  been  continued,  with  the  necessary  modifications, 
in  the  Christian  Church.  We  observe  a  twofold  ceremony. 
First,  the  espousals  (sponsalia),  or  solemn  promise  of  future 
marriage,  and  secondly  the  actual  nuptials.  With  the 
espousals  are  connected  the  arrhae,  or  earnest  of  the  com- 
munity of  goods  that  marriage  would  bring,  consisting  of  a 
ring  placed  by  the  bridegroom  on  the  bride's  "  faith  finger," 
and  the  delivery  of  the  act  of  dowry  in  writing.  There  is 
nothing  to  show  that  this  was  done  elsewhere  than  at  home, 
or  that  the  assistance  of  a  priest  was  required.  The  nuptial 
ceremony,  on  the  contrary,  is  performed  in  church,  and  not 
without  a  priest ;  it  has  three  features,  (i)  the  oblation  or 
eucharistic  sacrifice,  in  which  the  espoused  take  part,  (ii) 
the  benediction  pronounced  while  the  nuptial  veil  is  spread 
over  the  bride,  and  (iii)  the  crowning  of  the  married  pair 
with  crowns  usually  kept  for  that  purpose  in  the  church. 

This  procedure  follows  exactly  that  of  the  ancient  Con- 
farreatio, in  which  the  espoused  assisted  at  a  sacrifice  and 
partook  of  the  panis  farreus,  prepared  and  consecrated  for 
the  purpose.  But  this  solemnity  was  never  held  necessary 
for  a  valid  marriage  in  Roman  law,  and  the  Pope  insists 
that  neither  shall  its  Christian  counterpart  be  reckoned 
essential.  He  protests  against  the  alleged  teaching  of  the 
Greek  Churches  that  the  omission  of  it  was  sinful,  definitely 
excuses  those  for  whom  it  was  too  costly,  and  affirms  the 
validity  of  a  marriage  contracted  by  mutual  consent  alone. 
No  ceremony,  he  adds,  can  make  a  marriage  good,  when 
that  consent  is  lacking. 

This  became  the  constant  doctrine  of  the  Western  Church. 
But  it  will  be  observed  that  no  mention  is  made  here  of  a 


48    OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

renewal  of  consent  at  the  time  of  the  nuptials.  The  consent 
of  the  espousals  was  de  futuro,  and  this,  we  have  seen,  is 
imperfectly  binding,  and  does  not  constitute  true  marriage. 
Does  the  conditional  contract  of  espousal  become  absolute 
when  the  nuptial  benediction  is  received,  without  any  further 
expression  of  consent  ?  The  question  was  much  debated 
during  the  next  two  centuries,  and  was  complicated  with 
that  of  a  theory  concerning  the  sacrament  which  first  appears 
in  the  writings  of  the  contemporary  of  Nicholas,  Hincmar 
of  Reims.  According  to  him,  marriage  became  complete 
only  on  consummation ;  the  contract  was  a  preliminary, 
setting  up  an  obligation,  but  one  that  could  be  rescinded ; 
the  sacrament  of  indissoluble  marriage  came  into  being  only 
with  consummation.  Gratian  accepted  this,  with  some 
safeguards,  and  the  school  of  Bologna  followed  him.  Peter 
Damian,  Hugh  of  St.  Victor,  and  Peter  Lombard,  main- 
tained the  contrary  proposition  that  consensus  facit  matri- 
monium,  and  the  influence  of  the  schools  of  theology  at  Paris 
caused  this  to  prevail.  As  a  by-product  of  this  controversy 
emerged  the  contention  that  the  true  contract  of  marriage 
must  be  per  verba  de  praesenti,  and  the  contract  of  espousal 
was  thenceforward  distinguished  as  being  made  per  verba 
de  futuro.  As  a  further  consequence,  it  became  general  to 
simplify  matters  by  doing  away  with  the  interval  of  time 
between  espousals  and  nuptials,  and  the  contract  of  espousal 
was  effected  at  the  church-door,  immediately  before  the 
benediction.  The  requirement  of  a  contract  de  praesenti 
was  met  in  many  Churches  by  an  addition  to  the  older  form 
of  espousal.  According  to  the  Sarum  Manual,  which  is 
closely  followed  by  the  modern  English  rite,  the  priest  first  put 
the  question,  "  Wilt  thou  have  this  woman  to  thy  wife  ?  " 
with  the  addition  of  words  setting  out  the  duties  of  the  holy 
estate.  The  question  was  repeated,  with  variations,  to  the 
woman,  and  both  parties  replied,  "  I  will."  This  was  the 


ESSENTIALS  AND  CONCOMITANTS  49 

contract  de  futuro.  Then  followed  words  de  praesenti :  "  I, 
N.,  take  thee,  N.,  to  my  wedded  wife/'  with  similar  ampli- 
fication. At  Rome,  however,  these  additions  were  not 
received,  and  the  ritual  to  this  day  has  only  the  demand  put 
to  the  parties,  with  the  answer,  "  Volo."  In  view  of  the 
fact  that  the  nuptial  benediction  is  to  follow  at  once,  it'  is 
possible  to  read  into  this,  says  Duchesne,  the  meaning  of  a 
contract  de  praesenti ; 1  but  it  can  hardly  be  doubted  that 
we  see  here  a  survival  from  a  time  when  the  promise  of 
espousal  was  held  to  be  sufficiently  ratified,  even  after  a 
considerable  delay,  by  the  nuptial  ceremony  following. 

It  follows  from  all  this  that  the  one  essential  rite  for  the 
sacrament  of  marriage  is  the  consent  of  the  parties,  ex- 
pressed either  by  actual  words  de  praesenti  or  by  some 
formula  of  agreement  on  which  the  same  quality  is  impressed 
by  concomitant  circumstances.  The  ceremonies  by  which 
this  necessary  act  is  accompanied  are  intended  only  to 
augment  its  solemnity,  and  may  be  varied  or  omitted. 
The  veiling  of  the  bride  gave  place  at  an  early  date  to  the 
practice  of  holding  a  pall  over  the  united  pair,  of  which 
vestiges  only  remain  in  some  places  ;  the  crowning,  retained 
in  the  East,  has  long  since  disappeared  in  the  West.  The 
modern  use  of  veils  and  garlands  has  no  religious  signifi- 

1  Duchesne,  loc.  cit.  "  La  ceremonie  nuptiale  comprend  actuelle- 
ment  les  rites  des  fian9ailles  aussi  bien  que  ceux  du  mariage  propre- 
ment  dit.  Elle  commence  par  la  declaration  du  consentement,  qui, 
le  mariage  devant  etre  celebr6  sur  1'heure,  a  maintenant  le  caractere 
d'un  engagement  de  praesenti.  Les  parties,  interrogees  par  le 
pretre,  expriment  publiquement  leur  intention  de  s'unir  en  mar- 
iage." The  author  adds  a  note  :  "  On  a  place  la,  au  moyen  age, 
la  formule  Ego  contango  vos  in  matrimonium,  etc.,  qui  est,  comme 
on  le  voit,  une  sorte  d'interpolation  de  la  ceremonie  primitive.  Cette 
formule,  dont  le  sens  litteral  est  excessif,  n'a  pas  peu  contribue  a 
fausser  les  idees  sui  la  nature  du  mariage  religieux,  et  £  faire  croire 
que  le  lien  matrimonial  derive  de  1'autoritedu  pretre."  See  below  p. 
162. 

M.C.S.  E 


50    OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

cance,  though  it  illustrates  the  persistence  of  customs  no 
longer  prescribed  by  authority.  The  place  of  the  bene- 
diction has  varied.  The  Roman  rite  has  three  benedictory 
prayers,  one  at  the  espousals,  another  after  Pater  noster 
in  the  Mass,  the  third  before  Ite  missa  est.  In  the  churches 
of  the  Gallican  rite,  the  nuptial  benediction  seems  to  have 
been  either  entirely  detached  from  the  Mass,  or  given  after 
Communion.  The  English  rite  of  1549,  closely  following 
that  of  the  Sarum  Manual,  had  a  benedictory  prayer  and 
a  blessing  at  the  espousals,  with  three  more  prayers  and 
a  second  blessing  said  at  the  altar  before  the  beginning  of 
Mass,  and  this  arrangement  has  been  retained  in  subsequent 
revisions. 

Such  being  the  external  features  of  the  rite,  and  its 
concomitants,  it  remains  to  determine  the  quality  of  the 
sacramental  grace  of  marriage. 

It  has  been  reduced  to  a  mere  permission  of  the  carnal 
act.  "  Because  of  fornication,"  says  St.  Paul,  "  let  each 
man  have  his  own  wife,  and  let  each  woman  have  her  own 
husband."  1  Commending  virginity  as  preferable,  he  allows 
marriage  on  account  of  human  weakness.  The  English 
ritual  puts  this  forward  as  a  cause  for  which  marriage  was 
instituted.  "  It  was  ordained  for  a  remedy  against  sin, 
and  to  avoid  fornication  ;  that  such  persons  as  have  not 
the  gift  of  continency  might  marry,  and  keep  themselves 
undented  members  of  Christ's  body."  But  if  this  be  taken 
to  mean  merely  that  an  act  which  would  be  sinful  apart 
from  marriage  is  permissible  in  marriage,  there  is  no  addition 
of  sacramental  virtue,  since  this  is  the  effect  of  marriage 
in  the  order  of  nature.  A  further  effect  is  therefore  sought 
in  the  restraint  of  appetite ;  the  grace  of  marriage  is  that 
more  temperate  use  of  the  body  which  should  distinguish 
those  who  profit  by  its  working.  But  this  is  to  halt  un- 
1  i  Cor.  vii.  2. 


THE  SACRAMENTAL  GRACE  51 

reasonably  ;  for,  as  St.  Thomas  says,  the  effect  of  grace  is 
not  only  to  restrain  men  from  sin,  but  also,  and  simultane- 
ously, to  impel  them  to  good.1  He  therefore  adds  that  the 
grace  of  marriage  aids  men  in  the  performance  of  all  things 
which  they  undertake  in  the  married  state ;  their  under- 
taking is  expressly  approved  by  God,  and  therefore,  as  in 
the  case  of  those  promoted  to  holy  orders,  a  special  grace 
is  given  enabling  them  to  fulfil  their  purpose  according  to 
the  divine  will. 

This  may  seem  sufficient,  but  it  is  rather  frigid  as  an 
account  of  sacramental  grace.  The  comparison  with  Holy 
Order  is  defective,  for  the  sacred  ministry  is  itself  a  purely 
Christian  institution,  designed  expressly  and  solely  as  a 
part  of  the  work  of  redemption  ;  there  is,  therefore,  obvious 
need  of  a  supply  of  grace  enabling  the  recipient  to  comport 
himself  in  all  things  as  the  representative  of  Christ.  But 
marriage  belongs  to  the  natural  order.  According  to 
analogy  we  should  expect  to  find  the  ability  requisite  for 
the  fulfilment  of  its  ends  supplied  by  God's  providence  in 
the  same  order.  Marriage  is  ordained  for  the  preservation 
of  the  species,  as  sleep  for  the  preservation  of  the  individual ; 
so  far  as  their  proper  use  is  concerned,  there  seems  to  be  no 
more  need  of  a  special  sacramental  grace  in  the  one  case 
than  in  the  other.  As  a  mystery  of  man's  redemption, 
marriage  should  mean  more  than  a  strengthening  and 
refining  of  domestic  ties. 

What  we  seek  may  be  found  in  St.  Paul's  comment : 
"  It  is  better  to  marry  than  to  be  inflamed."  *  Marriage 
is  not  only  an  escape  from  the  danger  of  actual  fornication, 

1  Sum.  TheoL,  Suppl.,  42,  3. 

2  i   Cor.  vii.  9  TrvpovarOcu.       Compare  2  Cor.  xi.  29,  where  the 
word  is  used  of  passionate  grief  or  indignation  ;   Eph.  vi.  16,  where 
the  "  fiery  darts  of  the  evil  one  "  are  temptations  caused  by  the 
stirring  of  the  passions  ;   2  Mace.  iv.  38,  x.  35,  xiv.  45. 


52    OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

though  in  such  a  society  as  that  of  Corinth  it  might  be 
almost  universally  necessary  on  that  account.  Virginity 
or  widowhood  is  the  better  way,  but  there  are  perils  besetting 
those  who  choose  it.  To  live  rightly  in  this  state,  a  man 
must  have  a  strong  hold  on  his  appetites^  and  passions,  the 
virtue  of  eyKpareia,  or  continence.  This  exists  as  a  natural 
virtue,  highly  prized  by  ethical  philosophers ;  it  exists 
also  in  the  supernatural  order,  being  one  of  the  fruits  of 
the  Spirit.1  Those  who  have  this  power  by  nature,  and 
those  to  whom  God  gives  it  by  grace,  are  capable  of  the 
higher  life  to  which  St.  Paul  himself  was  conscious  of  being 
called,  and  to  which  he  invited  others  :  "I  say  to  the 
unmarried  and  widows,  it  is  good  for  them  if  they  remain 
as  I  do."  But  he  took  it  for  granted  that  in  either  sex  such 
were  few.  Most  men  and  women,  attempting  this,  would 
be  inflamed  by  passion  ;  the  natural  impulse  of  procreation 
would  be  strong  in  them,  producing  serious  moral  disorder 
if  it  were  not  allowed  its  course.  The  truth  of  his  observa- 
tion is  well  established  by  experience.  But  it  is  equally 
certain  that  mere  indulgence  of  appetite  will  not  check 
this  disorder ;  it  may  give  relief  for  the  time,  affording  an 
outlet,  but  the  appetite  is  strengthened  by  gratification. 
Even  marriage,  in  the  order  of  nature,  is  no  remedy.  It 
may  be  a  palliative.  The  marriage  bond  imposes  a  check 
on  the  wandering  of  desire,  and  those  who  honestly  abide 
by  it  gain  the  advantage  of  an  external  control ;  but  the 
rights  of  marriage  may  be  abused  by  excess,  and  become 
the  merest  excuse  for  lustfulness.  The  morbid  inflamma- 
tion of  desire  is  the  same  thing,  whether  it  be  caused  by 
denial  of  gratification  or  by  indulgence.  Grave  pollution 
of  soul  is  found  at  either  extreme. 

This  morbid  inflammation  is  concupiscence.     It  is  an 
impulse  to  perform  the  sexual  act  merely  for  the  gratifica- 
1  So  St.  Paul  says  in  Gal.  v.  23. 


THE  SACRAMENTAL  GRACE  53 

tion  of  sense.  As  a  fully  developed  vice  of  nature,  it  seems 
to  be  peculiarly  human  ;  there  are  obscure  traces  of  it  in 
some  of  the  lower  animals,  which  point  to  its  origin  from 
a  variation  of  the  true  natural  instinct ;  but  as  a  rule  in  all 
other  animals  the  sexual  act  is  strictly  controlled  by  the 
course  of  nature,  and  directed  to  the  end  of  propagation. 
Concupiscence  would  therefore  seem  to  be  one  of  the  conse- 
quences of  human  freedom.  Man  has  risen  above  the 
environment  of  irresistible  instinct,  to  live  under  a  moral 
law  which  he  can  defy.  He  is  capable  of  sin.  St.  Paul 
was  expressing  this,  in  accordance  with  his  proper  cast  of 
thought,  when  he  said  that  through  law  comes  knowledge 
of  sin.1  The  motions  of  concupiscence  are  not  properly 
sins,  being  independent  of  the  will ;  but  they  are  the  result 
of  sin  and  the  cause  of  sin,  and  therefore  they  may  be  called 
sinful  lusts  of  the  flesh. 

The  sacrament  of  marriage  is  proposed  as  a  remedy  for 
these  evils.  It  is  better  to  marry  than  to  be  inflamed. 
Marriage  in  the  order  of  nature  will  not  have  the  effect 
desired ;  the  grace  which  it  brings  when  raised  to  a  super- 
natural potency  must  be  recognized  as  the  cause  of  deliver- 
ance. Marriage  is  a  sacramental  instrument  of  grace,  and 
therefore  a  moral  instrument ;  its  effect  will  depend  upon 
a  right  use.  The  right  use  of  it  should  extinguish  the  fire 
of  concupiscence.  St.  Paul  acknowledges  that  the  married 
who  abstain  from  the  use  of  marriage  will  probably  fall 
into  the  peril  of  incontinency.  Speaking  of  it  as  he  does, 
he  can  hardly  have  in  view  the  risk  of  adultery ;  he  com- 
mends such  abstinence  by  mutual  consent,  for  a  season  of 
devotion,  but  advises  a  return  to  the  use  of  marriage,  "  lest 
Satan  tempt  you  through  your  incontinency  "  ; 2  he  evi- 
dently refers  to  the  secret  and  interior  injuries  to  the  soul 

1  Rom.  iii.  20  ;    cp.  vii.  7-13.  2  i  Cor.  vii.  5. 


54    OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

resulting  from  the  morbid  inflammation  which  the  use  of 
marriage  is  to  heal. 

There  is  thus  given  by  marriage  grace  to  extinguish 
the  flames  of  concupiscence.  Those  whom  God  calls  to 
the  exceptional  state  of  virginity  receive  the  special  grace 
of  continence ;  to  the  rest  of  mankind  is  proposed  the 
ordinary  grace  of  marriage,  directed  to  the  same  end,  the 
production  of  the  supernatural  virtue  of  chaste  living. 
By  reason  of  its  sacramental  efficacy,  marriage  is  not  less 
chaste  than  virginity. 

The  sacrament  of  marriage  is  therefore  the  natural  insti- 
tution raised  to  a  supernatural  potency  for  the  conveyance 
of  divine  grace  delivering  men  from  the  fire  of  concupiscence 
and  producing  chastity  of  soul  and  body.  Being  in  the 
order  of  redemption,  it  is  peculiar  to  Christians ;  it  exists 
only  in  those  whom  baptism,  the  ianua  sacramentorum, 
has  brought  into  the  state  of  salvation.  It  is  thus  seen 
that  the  baptism  of  the  parties,  and  nothing  else,  makes 
the  difference  between  the  marriage  in  the  order  of  mere 
nature,  which  is  no  sacrament,  and  the  marriage  in  the 
order  of  redeemed  nature,  which  is  raised  to  sacramental 
efficacy.  From  this  two  consequences  flow. 

In  the  first  place,  there  can  be  no  marriage  between 
Christians  which  is  not  sacramental.  Attempts  have  been 
made  to  distinguish  between  the  contract  and  the  sacrament, 
as  though  something  separable  were  added  to  the  natural 
contract,  which  might  be  withheld.  Thus  Billuart l  argued 
that,  as  the  washing  of  the  body  with  water  without  a 
sacramental  intention  does  not  constitute  baptism,  so  a 
matrimonial  contract  entered  upon  without  such  intention, 
though  valid  as  a  contract,  does  not  constitute  the  sacrament 
of  marriage.  But  the  analogy  is  defective.  For  the  out- 
ward act,  to  which  is  annexed  the  sacramental  effect  of 

1  In  Suammm  S.  Thorn.,  iii,  Dist.  i,  art.  5,  §  5.     Sec  p.  195,  infra. 


CONTRACT  AND  SACRAMENT  55 

baptism,  is  not  mere  ablution  ;  it  is  ablution  performed  as 
a  sacred  act  with  invocation  of  the  Name  of  God.  This 
act  cannot  be  severed  from  its  sacramental  efficacy.  The 
excellent  principle  was  first  laid  down  expressly  by  Bellar- 
mine  and  is  now  universally  accepted,  that  it  is  not  necessary 
to  intend  the  specific  effect  of  the  sacrament,  or  to  believe 
that  it  has  such  effect ;  it  is  enough  to  intend  to  do  what 
the  Church  does,  in  other  words,  to  perform  a  certain  sacred 
action  proper  to  Christians.  It  is  even  held,  on  the  highest 
authority,  that  a  negative  intention,  if  it  take  the  form  only 
of  intending  not  to  produce  the  sacramental  effect,  does 
not  nullify  the  sacrament,  since  human  perversity  cannot 
vary  the  effect  of  God's  ordinance  of  grace ;  the  only 
negative  intention  that  can  render  void  the  act  of  baptism 
normally  performed  is  an  express  intention  not  to  do  what 
the  Church  does,  or  not  to  baptize  in  the  Christian  sense. 
In  the  case  of  marriage,  the  act  which  is  thus  to  be  estimated 
is  not  a  specifically  Christian  act  newly  instituted ;  it  is 
continued  in  Christianity  from  the  order  of  nature ;  those 
who  intend  to  contract  matrimony  in  the  order  of  nature 
intend  to  do  what  the  Church  does,  and  they  have  no  power 
to  detach  from  that  act  the  sacramental  efficacy  conferred 
upon  it  by  God.  It  has  even  been  suggested  that  baptized 
persons  professing  to  contract  matrimony  with  the  express 
intention  of  excluding  the  sacramental  effect  would  not  in 
fact  make  a  valid  contract,  since  they  would  be  attempting 
to  do  this  under  impossible  conditions ;  *•  but  this  seems 
unreasonable,  since  they  would  certainly  be  intending  true 
marriage,  though  ignorant  of  one  of  its  necessary  implica- 
tions. The  conclusion  stands  firm,  though  without  this 
perverse  corollary,  that  in  the  marriage  of  Christians  con- 
tract and  sacrament  are  inseparable.  They  are  distinguish- 
able in  idea,  but  not  in  fact. 

1  De  Smet,  D*  Spomalibus  ft  Matrimonio,  p.  119. 


56    OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

In  the  second  place,  when  married  persons  become 
Christians,  their  marriage  at  once  becomes  sacramental. 
It  need  not  be  renewed,  no  fresh  consent  being  required. 
Having  made  their  contract  of 'mutual  surrender,  and  having 
fulfilled  it,  they  cannot  enter  upon  any  new  contract  to  the 
same  effect.  They  are  already  naturally  one,  with  that 
union  to  which  God  has  given  sacramental  efficacy.  The 
obvious  objection  that  unbelievers  are  in  some  sort  made 
recipients  of  a  sacrament,  is  admirably  answered  by  St. 
Thomas  Aquinas.  Marriage,  he  says,  was  instituted  by 
God,  not  exclusively  as  a  sacrament,  but  also  for  the  service 
of  nature  ;  and  therefore  unbelievers,  though  they  have  no 
part  in  marriage  as  ministers  of  a  sacrament,  have  a  part 
in  it  in  so  far  as  it  serves  nature  ;  and  even  their  marriage, 
though  not  actually  a  sacrament,  because  not  contracted 
in  the  faith  of  the  Church,  has  in  it  that  which  may  become 
a  sacrament.1  The  order  of  nature  is  not  to  be  too  violently 
separated  from  the  order  of  grace  ;  what  these  two  persons 
have  done  in  the  one  order  has  an  inherent  capacity  for 
energizing  in  the  other. 

But  what  is  the  case  if  one  party  be  converted  ?  It  is 
argued  that  here  the  sacrament  does  not  come  into  being, 
since  the  bond  is  the  substance  of  the  sacrament,  and  this 
must  be  identical  in  the  two  parties  who  are  conjoined ; 
therefore,  while  the  one  party  remains  unbaptized  and 
incapable  of  the  sacrament,  the  other  party  also  remains 
without  it.  The  reasoning  is  ingenious,  but  it  conflicts 
with  the  teaching  of  St.  Paul.  Dealing  with  the  case  in 

1  "  Matrimonium  non  est  tantum  institutum  in  sacramentum, 
sed  etiam  in  ofncium  naturae  ;  et  ideo  quamvis  infidelibus  non 
competat  matrimonium,  secundum  quod  est  sacramentum  in  dis- 
pensatione  ministrorum  consistens,  competit  tamen  eis,  inquantum 
est  in  omcium  naturae  :  et  tamen  etiam  matrimonium  tale  est 
aliquo  modo  sacramentum  habitualiter,  quamvis  non  actualiter,  eo 
quod  actu  non  contrahunt  in  fide  ecclesiae."  S.  T.  Suppl.  59,  2,  i 


SACRAMENTAL  VALUE  OF  MARRIAGE        57 

question,  he  wrote  :  "  The  unbelieving  husband  is  sanctified 
in  the  wife,  and  the  unbelieving  wife  is  sanctified  in  the 
brother."  x  But  if  the  married  man  or  woman  who  enters 
the  covenant  of  grace  by  baptism  receives  not  only  a  personal 
gift  of  sanctification,  but  a  gift  which  abounds  even  to  the 
unbelieving  party,  how  can  this  be  except  by  virtue  of  the 
sacramental  bond  uniting  them  ?  It  would  be  unreasonable 
that  a  Christian  should  be  called  upon  to  live  in  marriage 
without  the  sacramental  grace  of  marriage,  and  according 
to  the  Apostle  he  not  only  has  this  himself,  but  some  share 
in  it  is  extended  to  the  partner  of  his  natural  life.  St. 
Augustine  evidently  so  understood  St.  Paul,  for  we  have  seen 
that  he  held  this  marriage  indissoluble,  holding  also  that  indis- 
solubility  depends  on  the  sacramental  character  of  marriage. 

By  parity  of  reasoning  the  sacramental  quality  is  found 
also  in  those  marriages,  rarely  permissible,  which  are 
contracted  by  a  Christian  with  an  unbeliever. 

By  the  impress  of  this  sacramental  character  the  sanctity 
of  marriage  can  hardly  be  said  to  be  enhanced,  since  it  is 
already  complete.  Still  less,  if  we  may  venture  to  part 
company  with  St.  Augustine,  is  the  obligation  increased. 
But  the  institution  is  brought  more  obviously  within  the 
ambit  of  religion,  and  violation  of  the  bond  takes  a  particular 
colour  of  sacrilege.  Moreover,  neglect  of  marriage,  or  its 
discouragement,  becomes  more  blameworthy.  If  in  the 
natural  order  men  ought  to  marry  with  a  view  to  the  fulfil- 
ment of  the  divine  purpose  by  the  propagation  of  mankind, 
much  more  is  this  desirable  in  the  order  of  grace  where 
additional  benefits  are  dispensed  to  the  individual  soul. 
Artificial  restraint  on  marriage,  difficulties  created  by  social 
conventions,  by  unequal  distribution  of  wealth  and  by 
unwillingness  to  face  the  responsibilities  of  parentage,  are 
seen  to  endanger  the  welfare  of  the  race ;  professors  of 
1  i  Cor.  vii.  14. 


58    OF  MARRIAGE  IN  THE  ORDER  OF  GRACE 

eugenics  complain  that  they  tend  to  reserve  the  task  of 
reproduction  to  the  more  reckless  and  incompetent ;  from 
the  Christian  point  of  view  they  seem  equally  mischievous 
as  depriving  souls  of  the  succours  of  grace.  Barriers  still 
more  artificial,  but  more  justifiable,  have  the  same  dangerous 
consequences.  It  may  be  desirable,  it  may  even  be  neces- 
sary as  noted  above,  to  restrain  from  marriage  those  who 
would  abuse  the  holy  estate,  and  whose  progeny  would 
be  a  social  pest ;  but  such  restriction  calls  for  the  greatest 
caution,  lest  individuals  be  unduly  sacrificed  to  the  general 
good ;  persons  denied  the  benefits  of  marriage  need  other 
help,  and  the  most  careful  guardianship.  It  is  the  will  of 
God  that  men  should  find  in  marriage  the  remedy  against 
sin  which  they  need  the  more  as  they  are  morally  weak. 
The  life  of  virginity  is  for  those  who  are  called  to  it  by  God, 
whether  in  religion  or  in  obedience  to  obvious  dictates  of 
nature.  For  them  other  succours  are  supplied ;  for  the 
generality  of  men  and  women,  marriage  is  the  way  of  safety. 
Mistakes  have  worked  disaster.  The  bold  and  generous 
attempt  to  demand  a  celibate  life  from  all  admitted  to  the 
sacred  ministry,  pressed  by  the  Western  Church  from  early 
days,  has  had  some  deplorable  results ;  its  unwisdom  has 
at  times  been  admitted  in  the  highest  quarters.  The 
Eastern  Churches  frankly  abandoned  the  effort  from  the 
time  of  the  Council  in  Trullo,  even  blaming  the  zeal  of  the 
Latins,  and  in  the  sixteenth  century  the  English  Church 
tardily  and  reluctantly  adopted  a  yet  larger  freedom.  The 
sacrament  of  marriage  cannot  safely  be  withheld  from  those 
who  need  it.  The  dislike  of  second  marriages,  once  so 
strongly  felt  in  the  Church  that  even  orthodox  divines 
lent  some  countenance  to  the  heretics  who  denied  their 
lawfulness,  has  given  way  to  this  necessity.  The  ordinance 
of  God  is  justified  by  experience,  alike  in  the  order  of  nature 
and  in  the  order  of  grace. 


CHAPTER    III 

Of    Marriage    in    Human   Law 

BEING  an  institution  of  human  society,  marriage  is 
inevitably  an  object  of  human  law.  There  is  pro- 
bably no  form  of  government,  however  savage,  which  has 
not  fixed  customs  and  regulations  dealing  with  this  matter, 
as  there  is  no  form  of  civilization,  however  relaxed  and  cor- 
rupt, which  does  not  retain  something  of  the  kind.  Men 
may  depart  very  far  from  obedience  to  natural  law,  but 
they  cannot  escape  from  the  necessity  of  recognizing  the 
natural  union  of  man  and  woman,  or  of  guarding  it  by 
positive  rules. 

According  to  Hooker's  distinction,  these  rules  are  either 
mixedly  human  or  merely  human  laws. l  They  either  enforce 
the  natural  law  or  direct  men  in  ways  which  are  naturally 
indifferent.  This  may  be  said  of  all  laws  which  are  in  accord- 
ance with  the  will  of  God  ;  and  since  civil  order  is  the  natural 
state  of  man,  the  ministers  of  such  order  are  the  natural 
ministers  of  God,  and  the  rules  so  made  by  legitimate 
authority  are  binding  in  only  a  less  degree  than  the  natural 
law  itself.  But  since  perversity  and  unwisdom  abound, 
regulations  made  by  fallible  men  are  always  liable  to  con- 
flict with  natural  law.  There  are  some  who  would  deny 
to  such  perverse  ordinances  the  august  name  of  law,  but 
the  common  use  of  speech  forbids  this  nice  discrimination. 
It  must,  therefore,  be  admitted  that  human  law,  not  im- 

.  Pol.  i.  x.  10. 

69 


60  OF  MARRIAGE  IN  HUMAN  LAW 

properly  so  called,  may  disagree  with  natural  law.  In  this 
case  there  is  a  conflict  of  authority  and  a  grave  disturbance 
of  obligation.  There  can  be  no  doubt  that  the  authority  of 
natural  law  is  the  greater  ;  but  a  man  who  knows  what  God 
the  Creator  has  prescribed,  and  is  at  the  same  time  com- 
manded otherwise  by  the  human  laws  to  which  he  is  ordin- 
arily subject,  may  be  in  a  great  strait ;  for  a  loyal  submis- 
sion to  these  laws  in  general  is  required  by  nature  no  less 
than  obedience  to  the  particular  direction  of  the  divine  law 
that  is  in  question.  In  all  such  cases  of  conflict  it  is  neces- 
sary to  walk  warily.  There  is  a  presumption  in  favour  of 
public  law  as  against  a  man's  private  interpretation  of  the 
divine  law,  which  may,  however,  be  overthrown  by  a  per- 
emptory judgment  of  the  man's  own  conscience ;  he  can 
then  say  only  that  he  must  obey  God  rather  than  man. 
When  the  divine  law  is  interpreted  by  adequate  authority, 
as  by  the  teaching  of  the  Christian  Church,  there  is  no  such 
presumption  in  favour  of  public  human  law  contravening 
it,  but  rather  a  presumption  to  the  contrary  part. 

Reflection  will  show  that  human  law  may  vary  from  the 
divine  law  of  nature  in  five  ways. 

First,  it  may  command  or  forbid,  as  above  noted,  things 
which  natural  law  leaves  indifferent.  There  is  variation, 
since  an  act  is  forbidden  which  the  law  of  nature  passes  by, 
or  an  act  becomes  obligatory  which  nature  does  not  require  ; 
but  there  is  no  contradiction,  and  no  conflict  of  authority. 

Secondly,  human  law  may  generally,  or  for  a  particular 
occasion,  refuse  to  enforce  a  demand  of  natural  justice  ; 
as  when  a  certain  kind  of  contract  is  not  legally  recognized, 
or  when  by  a  moratorium  the  recovery  of  debts  is  suspended. 
In  this  case  also  there  is  no  contradiction,  since  the  law 
does  not  forbid  the  voluntary  fulfilment  of  the  natural 
obligation. 

Thirdly,  what  natural  law  expressly  allows,  or  even  com- 


VARIATION    FROM  NATURAL  LAW  61 

mends,  yet  without  obliging  any  man  specifically  to  its 
performance,  may  be  forbidden  by  human  law ;  as  may 
happen  when  particular  kinds  of  religious  observance  are 
prohibited.  In  this  case  there  is  opposition,  possibly  of 
grave  importance,  between  the  two  authorities ;  but  the 
conscience  of  the  individual  subject  is  not  strained,  if  the 
thing  prohibited  is  not  required  of  him  in  particular  on  any 
given  occasion. 

In  the  fourth  place,  human  authority  exercises  a  certain 
economic  or  dispensatory  power  in  matters  regulated  by 
natural  law.  Dispensation  is  of  two  kinds.  In  the  first 
kind,  which  is  absolute,  the  operation  of  law  is  directly 
suspended  in  a  given  case  ;  it  can  be  granted  only  by  the 
authority  which  imposed  the  law,  since  it  is  in  effect  a  partial 
abrogation.  Such  dispensations  are  required  by  the  imper- 
fection of  a  law,  not  universally  applicable  to  all  cases  alike, 
which  the  legislator  himself  recognizes,  and  thereupon  reme- 
dies the  defect  of  his  own  work.  In  this  sense  the  maxim 
holds  good,  Eiusdem  est  solvere  cuius  est  ligare.  Such  imper- 
fection cannot  be  attributed  to  the  natural  law  of  God  the 
Creator,  which  is  therefore  not  open  to  dispensation  of  this 
kind.  It  is  sometimes  argued  that  God  has  by  revelation 
allowed  in  men  or  societies  imperfectly  instructed  things 
which  are  contrary  to  natural  law,  and  some  moral  questions 
arising  out  of  the  records  of  the  Old  Testament  are  thus 
resolved  ;  but  it  is  safer  to  say  with  St.  Paul  that  the  divine 
compassion  "  overlooks  "  the  times  of  ignorance,1  and  the 
attribute  of  mercy  belongs  to  God  rather  as  Judge  than  as 
Lawgiver.  Alternatively,  this  economy  of  grace  may  be 
referred  to  the  second  kind  of  dispensation. 

In  this  second  kind,  which  is  contingent,  note  is  taken 
of  the  principle  that  all  laws  must  yield  to  necessity.  Fault 
is  not  imputed  to  a  man  who  acts  contrary  to  law  under 
1  Acts  xvii.  30. 


62  OF  MARRIAGE  IN  HUMAN  LAW 

positive  constraint ;  and  by  the  working  of  his  own  conscience 
he  may  in  such  case  hold  himself  dispensed  from  the  observ- 
ance of  the  law.  But  the  conscience  needs  a  guide,  and 
duress  varies  so  widely,  from  actual  bonds  or  imprisonment 
to  the  slightest  effects  of  unnerving  fear,  that  an  external 
authority  is  sought  to  determine  whether  in  a  given  case  the 
obligation  of  law  is  relaxed.  The  divine  law  of  nature  is 
open  to  dispensation  of  this  kind,  not  because  the  will  of 
God  is  countered  by  any  natural  necessity,  but  because  the 
will  of  man  is  obstructed  both  by  the  natural  limits  of  his 
power,  and  by  the  unnatural  perversity  of  himself  or  of  his 
fellow  men.  To  stretch  himself  beyond  the  natural  limits 
of  his  power  without  the  express  gift  of  a  supernatural 
faculty,  is  to  defy  God's  law ;  to  be  restrained  from  in- 
tended obedience  by  the  perversity  of  circumstances,  by 
the  failure  of  his  own  powers,  or  by  the  arbitrary  interference 
of  other  men,  is  to  stand  in  need  of  dispensation.  Such  dis- 
pensation is  regulated  in  foro  conscientiae  by  the  response* 
prudentum,  the  advice  of  those  skilled  in  the  science  of  souls, 
and  by  the  authority  for  binding  and  loosing  committed  to 
the  Christian  priesthood  ;  in  foro  externo  it  may  be  regulated 
by  human  law,  which  thus  exercises  an  economic  or  dispen- 
satory authority  even  in  regard  to  the  divine  law.  Homi- 
cide, for  example,  is  contingently  in  certain  circumstances 
justified  by  human  law.  Human  law  is  not  set  against 
divine  law,  but,  being  itself  authorized  by  the  divine  law 
of  nature,  it  is  employed  within  the  purview  of  that  superior 
law  for  this  administrative  function.  If  the  function  be 
rightly  performed,  there  is  here  no  conflict  of  authorities, 
but  due  subordination. 

In  the  last  place,  human  law  may  directly  contradict  the 
law  of  nature,  forbidding  what  God  commands,  or  command- 
ing what  God  forbids.  As  an  individual  man  can  act  against 
God's  law,  so  can  a  community  of  men  which  has  legislative 


VARIATION  FROM  NATURAL  LAW  63 

authority.  Regulations  so  made  may  be  unworthy  of  the 
name  of  Law,  but  neither  use  nor  principle  allows  the  refusal 
of  that  common  denomination.  As  the  unnatural  act  of  a 
man  is  properly  a  human  action,  so  the  unnatural  enactment 
of  a  human  legislature  is  properly  human  law.  The  legisla- 
ture does  not  lose  its  natural  character  by  an  act  of  rebel- 
lion against  natural  law.  It  retains  its  proper  authority. 
There  is  now,  therefore,  a  direct  conflict  of  authorities,  and 
the  duty  of  the  individual  man  is  plain  :  he  must  obey  God 
rather  than  man. 

Applying  what  is  here  premised  to  the  estate  of  marriage, 
we  shall  see  that  human  law  may  either  simply  reinforce 
the  law  of  nature,  or  may  vary,  from  it  in  one  or  more  of 
these  five  ways.  A  third  course  is  indeed  theoretically 
possible.  In  Plato's  imagined  Republic  marriage  is  ignored, 
if  indeed  the  plan  of  promiscuous  breeding  under  the  con- 
trol of  the  State  does  not  involve  its  prohibition.  The  sug- 
gestion recently  mooted,  that  the  law  should  recognize  only 
sexual  connexions  contracted  for  a  limited  period  or  during 
the  pleasure  of  the  parties,  does  without  doubt  involve  the 
mere  ignoring  of  marriage.  A  man  and  woman  would  not 
be  prevented  from  contracting  true  marriage  and  fulfilling 
its  obligations,  but  this  would  be  outside  the  cognizance  of 
the  law ;  the  connexion  recognized  by  law  would  not  be 
marriage,  though  it  might  usurp  the  name.  It  would  be 
legal  concubinage,  a  contractual  relation,  the  conditions  of 
which  would  be  regulated  and  enforced  by  law.  Marriage 
in  the  natural  sense,  as  we  have  seen,  is  not  a  contractual 
relation  ;  it  begins  with  a  contract,  but  a  completed  con- 
tract, the  completion  of  which  sets  up  a  natural  relation. 
When  a  man  and  a  woman  have  consented  to  live  together 
in  wedlock,  and  have  come  together  in  accordance  with 
that  consent,  their  contract  terminates  in  the  natural  state 
of  marriage  into  which  they  have  entered.  Legal  concu- 


64  OF  MARRIAGE  IN  HUMAN  LAW 

binage,  on  the  other  hand,  is  a  relation  set  up  by  a  continuing 
contract,  which  has  no  natural  term,  which  is  defined  by 
law  and  can  be  rescinded  by  law.  To  recognize  such  a 
relation  in  lieu  of  marriage  is  to  ignore  marriage. 

In  practice,  however,  it  may  be  doubted  whether  any 
political  community  has  ever  ignored  marriage.  It  is  certain 
that  none  of  the  communities  known  to  history  have  done 
so.  But  neither  does  it  appear  that  any  community  has 
ever  been  content  to  treat  marriage  purely  as  it  exists  in 
the  order  of  nature,  reinforcing  without  variation  the  require- 
ments of  natural  law.  Such  treatment  would  indeed  be 
impossible  without  that  complete  knowledge  of  natural 
conditions,  and  that  complete  submission  to  the  Will  of 
God,  which  are  not  to  be  found  in  any  human  society.  The 
utmost  that  can  be  expected  is  that  some  regulations  of 
human  law  will  conform  to  natural  law,  while  others  will 
vary  from  it  in  the  way  either  of  addition  or  of  conflict. 
The  best  form  of  human  law  will  be  that  which  escapes 
conflict,  and  avoids  harmful  or  vexatious  additions. 

The  enactment  of  laws  regarding  marriage  is  a  part  of  the 
function  of  government  belonging  by  nature  to  political 
societies,  and  therefore  it  is  not  necessary  to  enquire  par- 
ticularly where  that  power  resides.  It  is  enough  for  our 
present  purpose  that  it  exists  and  is  exercised,  whether  for 
making  general  laws  binding  a  whole  nation,  or  for  imposing 
narrower  rules  like  those  affecting  princely  houses  in  Ger- 
many. But  since  marriage  is  raised  to  the  supernatural 
order  as  a  sacrament  of  the  Christian  Church,  it  is  important 
to  ask  whether  the  legislative  and  juridical  powers  of  a  civil 
community  are  lessened  by  that  circumstance.  Things 
purely  of  the  supernatural  order  do  not  seem  to  be  in  any 
way  subject  to  civil  control,  either  in  right  or  in  fact,  for 
the  gifts  of  grace  are  intangible  ;  concrete  things  and  human 
actions  annexed  to  the  supernatural  order,  as  concerns 


CONTROL  OF  MARRIAGE  BY  THE  STATE     65 

their  natural  constitution,  remain  subject  to  such  control 
in  fact,  and  to  some  extent  in  right ;  to  what  extent  they 
ought  to  be  withdrawn  from  under  the  hand  of  the  civil 
power  is  one  of  the  vexed  questions  of  Christian  politics. 
Those  mysteries  of  grace  in  which  common  things  are  set 
apart  for  sacred  uses  afford  the  largest  room  for  contention. 
To  take  the  crudest  instance,  and  one  in  which  the  common 
sense  of  mankind  prevents  actual  clashing,  the  water  of 
Baptism  and  the  wine  of  the  Eucharist  are  things  evidently 
under  the  control  of  civic  law,  which  might  conceivably  put 
serious  hindrances  in  the  way  of  their  sacramental  use.  The 
sacrament  of  marriage  is  no  less  the  exercise  of  natural 
human  functions,  which  cannot  be  wholly  withdrawn  from 
the  cognizance  of  the  State.  Indeed,  since  the  first  end  of 
marriage  is  the  continuance  of  the  human  species  in  a  social 
order,  there  is  nothing  that  touches  more  closely  the  duties 
and  prerogatives  of  that  organization,  whatever  it  be,  which 
is  set  up  for  the  maintenance  of  social  order  in  general.  Even 
if  marriage  be  not,  through  the  development  of  patriarchal 
government,  the  very  source  of  all  civic  constitutions,  yet 
the  Family  and  the  State  are  naturally  directed  to  the  same 
end,  and  the  one  is  but  a  larger  growth  in  the  same  order. 
Those  who  would  withdraw  marriage,  as  a  sacrament,  from 
the  control  of  civic  law  must  therefore  consider  that  in  so 
doing  they  would  dislocate  the  natural  fabric  of  human 
society,  which  is  not  less  founded  in  the  providence  of  God 
than  are  the  sacraments  themselves. 

Is  the  sacrament,  then,  subject  to  this  form  of  human 
control  ?  To  solve  the  question,  we  must  remember  that 
marriage  is  raised  to  this  dignity  and  sanctity  by  the  addi- 
tion of  supernatural  grace,  but  remains  none  the  less  in  its 
natural  constitution.  A  regulation  of  human  law  which 
leaves  that  natural  constitution  unimpaired  will  not  affect 
the  sacrament ;  where  it  is  violated,  there  is  no  true  natural 

M.C.S. 


66  OF  MARRIAGE  IN  HUMAN  LAW 

marriage,  and  consequently  no  sacrament.  In  neither  case 
does  the  sacrament,  as  such,  come  under  the  control  of 
the  State.  A  tyrannical  law  may  obstruct  the  administra- 
tion of  this,  or  of  any  other  sacrament ;  an  unwise  law  may 
confuse  men's  minds  ;  but  these  perils  no  more  justify  a 
denial  of  the  natural  authority  of  the  civil  power  in  regard 
of  marriage,  than  the  corresponding  danger  of  exclusion  or 
adulteration  would  justify  denial  of  the  right  of  the  State 
to  regulate  the  production  or  importation  of  the  wine  which 
is  the  necessary  matter  of  the  Eucharist.  The  elevation  of 
natural  marriage  to  the  supernatural  dignity  of  a  sacrament 
affects  the  responsibility  of  civil  governments  in  only  two 
ways  ;  it  calls  for  more  reverent  care  in  guarding  the  ap- 
proach to  matrimony,  and  it  makes  a  breach  of  the  marriage 
bond  the  greater  wrong,  as  being  touched  with  the  reproach 
of  sacrilege  ;  the  risk  of  careless  administration,  or  of  a  sacri- 
legious system  of  legal  divorce,  is  no  reason  for  removing 
marriage  from  the  cognizance  of  the  State,  as  the  risk  of 
profanation  is  no  ground  for  exempting  sacred  places  from 
the  protection  of  the  police.  It  is  always  to  be  presumed 
that  right  will  be  done  by  the  powers  ordained  of  God,  nor 
is  the  authority  so  given  forfeited  by  abuse. 

The  State  is  not  the  only  organization  of  human  society. 
It  is  clear  that  mankind  as  a  whole  has  a  real  social  unity, 
continually  recognized  in  ethical  theory,  though  it  has 
never  secured  an  instrument  of  common  government ;  it 
is  a  natural  organism,  though  not  politically  ordered  :  it 
is  not  amorphous,  because  the  species  cannot  exist  without 
nucleated  divisions  comparable  to  the  constituent  cells  of 
a  living  body.  Forms  of  State,  civic,  national  or  imperial, 
are  such  divisions,  and  they  cannot  exclude  the  possibility 
of  other  divisions  of  a  similar  kind  cutting  across  them  and 
penetrating  them.  The  unity  of  a  family  is  not  destroyed 
by  the  dispersion  of  its  members  under  more  than  one 


VARIOUS  KINDS   OF  LAW  67 

national  government.  Nature  gives  no  special  sanction  to 
territorial  delimitation,  and  a  tribal  or  national  ordering  of 
society,  with  legislative  and  judicial  functions  complete, 
can  perfectly  well  be  independent  of  vicinage.  The  Jewish 
nation  has  illustrated  this  possibility  for  many  centuries. 
Societies  of  this  kind,  whether  natural  as  resting  on  birth 
and  inheritance,  or  artificial  and  formed  by  the  voluntary 
association  of  individuals,  do  in  fact  make  rules  for  their 
members  ;  when  sufficiently  established,  they  seem  to  be 
capable  of  giving  to  such  rules  the  character  of  law.  This 
power  results  from  the  natural  tendency  of  men  to  social 
order,  which  does  not  point  to  one  sole  kind  of  community. 
Men  can  incorporate  themselves.  The  theory  of  an  unitary 
sovran  State,  which  alone  has  corporate  existence  in  its 
own  right,  and  from  which  all  other  powers  of  incorporation 
are  derived,  is  not  taught  by  nature.  It  is  a  highly  artificial 
product  of  political  speculation,  beginning  with  the  Greek 
City,  given  a  wider  extension  in  the  Roman  Empire,  revived 
with  the  study  of  the  Civil  Law  in  the  Middle  Ages,  and 
pressed  to  a  hard  conclusion  by  the  lawyers  of  modern 
Europe.  Its  speciousness  comes  from  the  fact  that  the 
State,  as  ordinarily  understood,  can  refuse  to  recognize  such 
independent  jurisdictions,  and  that  without  this  recognition 
it  is  difficult,  under  modern  conditions,  to  enforce  obedience. 
Yet  obedience  can  be  enforced  in  a  measure  where  exclusion 
from  the  independent  community  is  a  matter  of  grave  con- 
sideration to  the  individual.  The  recent  history  of  the 
Christian  Church,  and  of  many  organizations  of  social  or 
economic  value,  is  sufficient  proof.  It  is  mere  pedantry  to 
deny  that  the  rules  of  such  societies  have  the  essential 
quality  of  law.  Human  law  is  the  self-regulation  of  a  society 
existing  in  accordance  with  natural  law ;  it  is  recogniz- 
able in  all  cases  where  the  society  is  able,  by  whatever  kind 
of  pressure,  to  put  constraint  on  its  individual  members. 


68  OF  MARRIAGE  IN  HUMAN  LAW 

A  society  exercising  this  function,  whether  territorially 
organized  or  no,  whether  political  or  religious  or  economic, 
may  be  checked  and  even  broken  up  by  the  superior  force 
of  another  society ;  but  so  long  as  it  remains  in  action  it 
has  the  power  of  making  laws.  The  technical  objection 
to  an  imperium  in  imperio  is  mere  jealousy  on  the  part  of 
an  overbearing  society. 

We  have,  then,  to  face  a  further  complication.  As  human 
law  may  be  in  conflict  with  natural  law,  so  also  diverse 
human  laws  may  be  in  conflict  with  each  other.  For  the 
individual  man  may  be,  and  usually  is,  a  member  of  more 
than  one  law-making  society.  If  the  various  laws  to  which 
he  is  subject  be  antagonistic,  he  will  be  put  to  the  question 
whether  of  them  he  should  obey.  There  is  here  no  indisput- 
able solution  as  in  the  case  of  conflict  between  natural  and 
human  law  ;  he  will  have  to  judge,  by  the  light  afforded  to 
his  conscience,  where  the  greater  weight  of  authority  resides- 
In  some  cases  judgment  will  be  swift ;  one  society  may  be 
obviously  superior  by  the  ordinance  of  God.  In  other  cases 
there  will  be  long  hesitation,  and  the  decision  may  seem 
doubtful  even  to  the  man  who  is  obliged  by  circumstances 
to  decide.  From  this  difficulty  the  constitution  of  human 
nature  seems  to  allow  no  entire  release. 

The  Christian  Church  as  a  whole,  and  certain  of  its  several 
parts,  are  law-making  societies  of  this  kind.  It  may  be 
true,  as  contended  by  Sohm  and  others,  that  the  Kingdom 
of  Heaven  was  originally  announced  as  a  spiritual  influence 
informing  the  consciences  of  individuals,  and  only  by  second- 
ary action  affecting  human  society  ;  but  this  takes  account 
of  nothing  but  the  preaching  of  the  Gospel.  But  preaching 
was  translated  at  once  into  action,  having  action  for  its 
immediate  object ;  and  this  action  could  not  be  other  than 
social.  The  sense  of  brotherhood  under  the  common  father- 
hood of  God,  so  characteristic  of  the  Gospel,  could  be  realized 


CONTROL  OF  MARRIAGE  BY  THE    CHURCH  69 

only  by  association.  The  inevitable  result,  natural  and 
therefore  of  divine  appointment,  was  the  instant  emergence 
of  a  social  order.  "  Probably  never  in  the  history  of 
religion/'  says  Harnack,  "has  a  new  society  appeared  with 
a  more  abundant  and  elaborate  equipment."  *  There  were 
two  reasons  for  this  :  the  first,  already  noted,  that  such 
development  was  natural ;  the  second,  making  for  swifter 
growth,  that  the  Church  issued  from  Judaism.  The  Jews 
were  a  nation,  not  tied  down  to  any  territory  though  having 
their  head-quarters  at  Jerusalem,  held  together  by  a  bond 
mainly  religious  but  entirely  effective,  a  nation  with  a  govern- 
ment and  jurisdiction  which  even  the  jealous  authorities  of 
imperial  Rome  were  fain  to  recognize.  Christians  were  a 
small  minority  among  them,  but  they  claimed  to  be  the  true 
Israel,  the  faithful  remnant  of  a  people  that  was  in  the  main 
apostate,  and  so  the  inheritors  alike  of  the  promises  of  God 
and  of  the  national  life.  The  title  Ecclesia  means  no  less. 
According  to  the  familiar  order  of  this  national  life  the 
Church  was  organized  :  it  was  the  Diaspora.2  The  national 
law  was  taken  over  intact,  and  was  after  some  contention 
adapted  by  the  authority  of  the  Church  to  the  new  require- 
ments of  the  Gospel.  The  spreading  of  the  Church  beyond 
the  limits  of  Jewry  affected  the  position  less  than  might 
have  been  expected.  Those  who  were  brought  in  of  the 
Gentiles  accepted  the  greater  part  of  Jewish  tradition  as 
their  own  inheritance  ;  the  scriptures  of  the  Old  Testament 
became  their  literature,  and  the  Hebrew  patriarchs  became 
their  forefathers  ;  Jerusalem,  the  Old  or  the  New,  was  their 
holy  city,  and  the  law  of  Moses  was  the  foundation  of  their 
jurisprudence.  They  were  subject,  it  is  true,  to  the  various 
jurisdictions  subsisting  within  the  framework,  as  yet  loose 

1  The  Constitution  and  Law  of  the  Church  in  the  First  Two  Cen- 
turies, p.  20  (Engl.  transl.). 
*  James  i.  i  ;    i  Pet.  i.  i. 


70  OF  MARRIAGE  IN  HUMAN  LAW 

knit,  of  the  Roman  Empire,  or  to  tribal  and  national  govern- 
ments beyond  the  borders  of  the  Empire  ;  they  were  taught 
to  render  a  conscientious  obedience  to  these,  as  ordained  of 
God,  and  as  far  as  possible  the  ordinary  affairs  of  life  were 
left  to  such  discipline  ;  but  there  were  limits  to  this  obedi- 
ence, and  they  needed  a  straiter  discipline  of  their  own. 
"  Ecclesiastical  law,"  says  Harnack  again,  "  arose  in  the 
main  from  the  necessity  of  replacing  those  laws  and  regula- 
tions in  force  in  the  State,  which  Christianity  was  unable 
to  recognize,  by  others  dealing  with  similar  conditions,  and 
of  improving  those  which  Christianity  was  able  to  accept. 
.  .  .  Paul  already  took  a  step  in  the  former  direction  when  he 
forbade  the  Christians  to  seek  for  justice  at  the  hands  of 
the  tribunals  of  the  world,  and  enjoined  upon  them  to  have 
recourse  to  qualified  Christian  brethren  (i  Cor.  vi.).  But 
the  whole  organism  of  the  constitution  of  the  Church  with 
its  officials,  right  down  to  the  development  of  the  monarch- 
ical episcopate  in  every  local  community,  is  to  be  regarded 
as  the  formation  of  a  legislative  system,  which  arose  simply 
because  it  was  not  found  possible  to  recognize  the  existing 
organizations  with  their  officials  except  very  conditionally 
and  within  narrow  limits."  1  One  may  think  it  more  than 
probable  that  a  like  development  would  have  taken  place 
without  the  pressure  of  this  particular  need,  but  the  actual 
mode  of  development  is  here  accurately  portrayed.  From 
the  first,  the  Church  was  a  law-making  society,  exercising 
both  legislative^  and  judicial  functions. 

But  what  is  the  legislature  of  the  Church,  and  where  is  the 
seat  of  judicature  ?  The  question  is  one  for  a  general 
treatise  on  the  Church,  but  it  seems  necessary  here  also  to 
deal  with  it  in  summary  fashion. 

Setting  aside,  as  contrary  to  the  terms  of  the  Apostolic 
commission,  the  contention  of  Marsiglio  of  Padua  that  for 
1  Ibid.,  p.  144. 


POWER  OF  THE  EPISCOPATE  71 

all  societies  alike,  and  so  for  the  Church,  legislative  power 
resides  in  the  multitude,  whence  it  is  deputed  to  representa- 
tives, we  find  two  possible  answers  to  the  question.  The 
power  of  binding  and  loosing,  which  is  both  legislative  and 
judicial,  was  vested  by  our  Lord  in  the  Apostles,  and  con- 
veyed through  them  to  others.  It  is  conveyed  either  in 
solidum  to  the  whole  episcopate,  according  to  St.  Cyprian's 
definition,  and  exercised  in  undivided  plenitude  by  each 
several  bishop,  or  in  a  special  measure  to  certain  principal 
bishops,  and  to  the  Roman  See  in  chief.1 

Setting  aside  again,  as  contradicted  by  the  evidence  of 
history,  the  contention  that  our  Lord  conveyed  to  St. 
Peter,  and  through  him  to  the  Roman  pontiff,  a  peculiar  and 
universal  power,  we  find  the  two  answers  resolved  into  one 
by  the  consideration  that  patriarchal  and  metropolitical 
powers  emerge  gradually  by  differentiation  from  the  general 
powers  of  the  episcopate.  They  were  created  by  the 
practice  of  the  Church,  and  are  founded  on  the  consent  of 
the  other  bishops.  But  there  seems  to  be  no  ground  on 
which  it  can  be  argued  that  the  bishops  severally  are  able 
to  make  a  final  and  irrevocable  transfer  of  any  part  of  their 
power,  or  to  bind  their  successors  by  any  submission  to  the 
authority  of  a  superior  See.  They  remain,  therefore,  always 
capable  of  resuming  into  their  own  hands  the  plenitude  of 


1  Cyprian,  De  Cath.  Eccl.  Unitate,  5  :  "  Quam  unitatem  tenere 
firmiter  et  uindicare  debemus  .  .  .  ut  episcopatum  quoque  ipsum 
unum  adque  indiuisum  probemus.  .  .  .  Episcopatus  unus  est 
cuius  a  singulis  in  solidum  pars  tenetur."  In  the  Council  of  Trent, 
Didacus  de  Payva  argued  :  "  Cyprianus,  ut  primas  Africae,  dis- 
pensavit  cum  virgine  incontinente  quia  tune  potestas  dispensandi 
nondum  erat  reservata  papae,  sed  earn  poterant  etiam  facere  pri- 
mates "  (Theiner,  ii.  261).  Esmein  says  that  in  the  seventeenth  and 
eighteenth  centuries  French  bishops  still  dispensed  with  impedi- 
ments of  consanguinity  and  affinity  in  the  third  and  fourth  degrees 
(Le  Mariage  en  Droit  canonique,  ii.  331). 


72  OF  MARRIAGE  IN  HUMAN  LAW 

the  power  to  bind  and  to  loose.  Thus  St.  Cyprian  himself, 
though  acknowledging  without  stint  the  superiority  of  the 
Ecclesia  principalis  at  Rome,  could  repudiate  the  ruling  of 
St.  Stephen  in  the  matter  alike  of  the  baptism  of  heretics 
and  of  the  Spanish  bishops  Martial  and  Basilides.1  The 
absolute  independence  of  each  several  bishop  is  then  checked 
only  by  the  moral  obligation  to  act  in  concert  with  the  rest ; 
and  this  obligation  is  enforced  by  the  power  residing  in  a 
synod  of  bishops  to  depose  one  who  acts  in  a  disorderly 
fashion.  A  bishop  is  thus  constrained  to  act  in  co-ordina- 
tion with  others,  and  even  in  subordination  to  a  synod  or  to 
a  metropolitan,  and  a  system  of  hierarchical  law  is  thus  pro- 
duced, to  which  he  ordinarily  conforms.  But  he  has  the 
power  to  withdraw  himself  therefrom,  subject  to  the  risk  of 
deposition.  The  chief  restraint  put  upon  him  consists  of 
the  circumscription  of  his  action  within  the  limits  of  a  dio- 
cese. He  is  thus  in  theory  sole  legislator  and  supreme  judge 
in  ordinary  for  his  own  local  Church.  In  theory,  I  say, 
because  in  practice  no  bishop  seems  to  claim  power  in  this 
full  extent,  but  is  content  rather  in  most  matters  to  adminis- 
ter more  general  laws  made  by  his  colleagues  in  common, 
and  to  allow  an  appeal  from  his  judgment  to  provincial  and 
higher  authorities.  The  legislative  powers  of  a  bishop  are 
therefore  usually  in  abeyance,  but  they  subsist  in  reserve, 
and  are  the  very  fount  of  that  law  which  he  administers  in 
apparent  inferiority. 

In  regard  to  marriage,  the  Church  began  with  a  twofold 
task.     In  the  first  place,  it  had  to  guard  and  put  abroad  the 


1  Cyprian,  Epp.  67,  72-5.  Compare  the  action  taken  by  French, 
English  and  other  bishops,  long  after  the  complete  establishment 
of  the  papacy,  in  "  withdrawing  obedience  "  from  the  rival  Popes 
whom  they  severally  recognized  during  the  later  years  of  the  Great 
Schism.  On  this  head  Creighton  may  be  consulted,  Hist,  of  the 
Papacy,  vol.  i,  chap.  2,  ad  -fin. 


THE  CHURCH  SLOW  TO  LEGISLATE          73 

teaching  of  the  Master  about  the  true  nature  of  wedlock,  the 
natural  law.  In  the  second  place,  it  had  to  frame  regula- 
tions for  constraining  its  members  to  the  observance  of  that 
law,  and  also  to  supplement  the  natural  law,  should  that  be 
found  advisable,  by  further  rules  of  conduct.  In  other 
words,  the  Church  was  at  once  the  teacher  of  divine  law  and 
a  maker  of  human  law.  Both  occupations  are  illustrated 
by  St.  Paul's  replies  to  the  questions  of  the  Corinthians.  He 
distinguished  between  what  he  said  by  way  of  permission  or 
dispensation,  and  what  by  way  of  commandment ;  between 
what  he  himself  gave  in  charge,  and  what  he  said  in  the  name 
of  God ;  between  the  commandment  of  the  Lord  and  his 
own  judgment ;  between  obligations  of  Christians  and  safe- 
guards of  marriage  that  were  acknowledged  equally  by  the 
heathen.1 

We  see  here  the  beginnings  of  what  grew  into  a  vast  sys- 
tem of  jurisprudence,  for  marriage  ultimately  became  one  of 
the  chief  subjects  of  ecclesiastical  law ;  power  to  legislate 
and  adjudicate  is  thus  early  claimed  and  exercised.  But 
the  Church  did  not  jealously  affect  this  power.  The  incon- 
venience of  having  two  marriage  laws  touching  the  same 
person  is  obvious ;  if  the  kingdoms  of  the  world  could  be 
induced  to  bring  their  laws  into  conformity  with  the  divine 
law,  the  Church  might  well  be  content.  Even  as  things 
were,  there  was  a  wise  reluctance  to  force  a  conflict.  That 
objection  might  be  taken,  rightly  or  wrongly,  to  a  decision 
involving  such  conflict,  is  shown  by  the  complaint  of  Hippo- 
lytus  against  Callistus,  who  allowed  women  of  noble  birth 
to  contract  marriage,  in  defiance  of  the  prohibition  of  Roman 
law,  with  men  of  lower  rank  or  even  with  slaves.2  When  the 
Empire  definitely  became  Christian,  the  efforts  of  the  Church 


1  i  Cor.  vii.  6,  12,  25,  39  ;    v.  i. 

2  Dollinger,  Hippolytus  and  Callistus,  pp.  147  seqq.  (Engl.  Transl.). 


74  OF  MARRIAGE  IN  HUMAN  LAW 

were  directed  to  the  reform  of  the  Civil  Law,  and  the  Eastern 
Church  ultimately  went  far  in  accommodating  itself  to  the 
legislation  of  Justinian.  The  Western  Church,  on  the  other 
hand,  continued  to  uphold  its  own  rule,  with  the  result  that 
it  finally  ousted  the  law  alike  of  the  Empire  and  of  the  new 
Germanic  Kingdoms,  being  exclusively  invested  by  common 
consent  with  legislative  and  juridical  functions  in  regard  to 
marriage.  The  modern  States  of  Europe  and  of  the  New 
World  have  reasserted  their  right  to  regulate  marriage  by 
law,  and  the  rule  of  the  Church  has  once  more  become  what 
it  was  at  the  beginning,  a  law  for-  the  faithful  which  is 
possibly,  and  usually,  in  disagreement  more  or  less  with  the 
laws  of  the  State. 

At  the  present  day,  then,  we  find  these  forms  of  human  law 
in  operation  as  regards  marriage.  In  Eastern  Christendom 
there  is  a  system  based  on  the  sacred  canons  of  the  Church, 
but  seriously  modified  by  the  Civil  Law  of  the  Roman  Empire  ; 
elsewhere  the  various  States  of  the  world  have  their  several 
marriage  laws  ;  concurrently  the  sections  into  which  the 
Christian  Church  is  administratively  divided  regulate  marri- 
age for  the  faithful  by  canonical  rules  and  spiritual  jurisdic- 
tion ;  the  Jews  throughout  the  world  live  by  their  own  law, 
with  more  or  less  of  subservience  to  the  laws  of  the  country 
in  which  they  are  domiciled ;  the  Musulman  law  runs 
effectively  in  some  regions  where  it  is  not  accepted  as  national 
law ;  throughout  India  the  law  of  marriage  recognized  by 
the  supreme  Government  follows  the  religious  profession  of 
the  parties ;  in  some  European  colonies  the  tribal  laws  of 
the  aboriginal  inhabitants  run  concurrently  with  those  of  the 
colonists,  being  severally  applicable  with  a  strict  distinction 
of  persons  ;  in  certain  Asiatic  countries  the  laws  of  European 
States  apply  by  virtue  of  capitulations  to  their  nationals 
resident  therein  ;  when  note  is  taken  of  the  particular  mar- 
riage laws  of  the  princely  houses  of  Germany,  and  of  the 


CONTRADICTING  NATURAL  LAW  75 

doubtful  efficacy  of  Mormon  law  in  North  America,  I  know 
not  if  a  complete  survey  has  been  made  in  brief  of  the  present 
state  of  human  law  regarding  marriage. 

These  diverse  laws  vary  more  or  less  from  natural  law 
in  the  five  ways  above  specified. 

Little  need  be  said  about  the  fifth  mode  of  divergence.  A 
human  law  directly  opposed  to  the  divine  law,  requiring  men 
to  do  what  the  divine  law  forbids,  or  forbidding  them  to  do 
what  the  divine  law  commands,  will  not  often  be  enacted  in 
respect  of  marriage,  and  presents  no  difficulties  to  the  con- 
science of  a  Christian.  He  must  obey  God  at  all  costs. 
Under  this  category  would  come  a  law  which  should  not 
merely  recognize  in  place  of  marriage  a  terminable  contract  of 
union,  but  also  forbid  any  contract  of  true  marriage  ;  a  law 
purporting  to  restrain  the  Church  from  teaching  or  enforcing 
on  its  members  any  part  of  the  divine  law  ;  and  any  attempt 
to  compel  the  recognition  of  a  forbidden  marriage. 

The  other  four  modes  of  divergence  call  for  careful  con- 
sideration. For  here  human  law  may  differ  from  the  divine 
law  of  nature,  juridically  or  by  legislation,  in  ways  which  are 
tolerable,  but  always  perilous  and  requiring  the  closest 
watchfulness. 

And  first,  juridically.  The  natural  law  has  no  judicature, 
save  in  the  tribunal  of  conscience  erected  within  each  man's 
soul.  There  is,  indeed,  a  form  of  judgment,  known  only  by 
execution  of  sentence,  in  which  God  Himself,  the  supreme 
Judge,  visits  offenders  against  His  laws  with  the  consequences 
of  their  misdeeds  ;  but  of  this  working  of  the  divine  provi- 
dence little  is  understood,  and  that  imperfectly.  There  is 
also  an  expectation  of  judgment,  in  which  every  man  shall 
receive  the  due  reward  of  his  deeds,  known  to  the  Searcher 
of  hearts.  But  that  does  not  belong  to  the  present  order  of 
human  life.  In  this  order  the  regular  administration  of 
justice,  whether  for  the  punishment  of  crime  or  for  determin- 


76  OF  MARRIAGE  IN  HUMAN  LAW 

ing  the  right  between  man  and  man,  is  committed  to  human 
society  and  controlled  by  human  law. 

A  tribunal  appointed  for  this  end  has  for  its  first  duty  the 
enforcement  of  natural  law,  for  its  second  the  interpretation 
and  application  of  the  particular  laws  of  the  society  in  which 
it  is  founded.  But  the  natural  law  also  requires  interpreta- 
tion as  it  is  applied  to  particular  cases,  and  here  any  tribunal 
may  err  ;  therefore  a  judge,  even  while  he  professes  to  be 
following  the  law  of  nature,  may  depart  from  it.  Further, 
he  is  bound  by  the  particular  laws  of  his  own  society,  whether 
a  fundamental  law  such  as  the  Constitution  of  the  United 
States  of  America,  established  custom,  or  the  last  word  of 
the  legislature,  and  he  cannot  set  natural  law  to  over- 
ride these ;  he  may  read  them  narrowly,  and  studiously 
pare  them  down  to  the  closest  possible  conformity  with 
natural  law,  but  he  must  finally  accept  the  obligation 
which  they  impose.  This  does  not  mean  that  human  law  is 
held  to  be  superior  to  natural  law ;  it  means  only  that  a 
judge  who  is  set  to  administer  a  particular  system  of  human 
law  must  assume  this  system  to  be  in  agreement  with  natural 
law.  He  must  therefore  judicially  hold  anything  conflict- 
ing with  the  system  to  be  no  part  of  the  law  of  nature.  The 
alternative  is  to  abdicate  his  tribunal.  It  was  partly  for 
this  cause  that  Christians  of  the  first  three  centuries  were  for- 
bidden to  hold  judicial  office  in  the  Roman  Empire. 

A  judge,  then,  who  has  before  him  a  cause  in  which  a 
question  of  marriage  arises,  must  necessarily  follow  the  parti- 
cular human  law  which  he  administers,  where  it  prescribes 
anything  ;  and  at  the  present  time  such  laws  are  usually  so 
complete  in  detail  that  variations  from  natural  law  are 
attributable  rather  to  the  legislative  than  to  the  judicial 
authority.  In  some  countries,  however,  and  notably  in 
Scotland,  there  has  been  so  little  legislation  about  marriage 
that  questions  not  infrequently  occur  which  can  be  resolved 


JURIDICAL  ACTION  77 

only  by  consideration  of  natural  law.  In  such  cases,  as  also 
in  a  less  degree  where  positive  law  is  to  be  applied,  a  tri- 
bunal may  be  hindered  in  two  ways  from  making  an  accur- 
ate determination. 

In  the  first  place,  evidence  is  required.  Courts  have  their 
several  rules  of  evidence,  which  they  usually  follow,  or  by 
which  they  are  bound.  These  are  sometimes  highly  artifi- 
cial, and  a  case  may  be  turned  by  the  arbitrary  exclusion  of 
important  testimony.  When  it  is  necessary  to  determine 
the  question  whether,  in  fact,  a  contract  of  marriage  has 
been  made,  the  court  can  only  decide  the  case  on  the  evidence 
admitted.  In  Scotland,  where  the  judges  are  usually  inclined 
to  a  favourable  construction,  scanty  evidence  of  the  fact 
will  be  held  sufficient,  especially  if  the  parties  are  known  to 
have  lived  together  as  man  and  wife.  In  England,  where  the 
contract  is  guarded  by  stricter  formalities,  much  more  rigor- 
ous proof  is  demanded.  If  in  the  one  case  an  union  may 
sometimes  be  recognized  by  law  which  is  no  true  marriage 
in  the  natural  order,  there  is  obviously  still  greater  risk  in 
the  other  case  of  the  denial  of  a  true  marriage,  by  which  the 
natural  law  will  be  set  at  naught. 

In  the  second  place,  a  rule  of  law  respecting  the  right  of 
application  to  a  court  may  hinder  the  ascertaining  of  facts. 
A  tribunal  may  look  at  the  question  of  the  validity  of  a 
marriage  from  two  different  points  of  view.  It  may  set 
itself  merely  to  arrive  at  the  facts,  or  it  may  regard  the  case 
as  arising  out  of  the  motion  of  a  petitioner  who  seeks  a 
decision  for  a  purpose  of  his  own ;  he  may,  for  example, 
desire  to  be  released  from  the  obligations  of  a  marriage  which 
he  has  ostensibly  contracted.  A  court  which  takes  the  latter 
point  of  view  may  reasonably  impose  certain  conditions  on 
the  petitioner.  It  may  rule  that  he  shall  not  be  allowed  to 
take  advantage  of  any  fault  or  neglect  of  his  own.  Such  is 
the  practice  of  the  High  Court  of.  Justice  in  England,  illus- 


78  OF  MARRIAGE  IN  HUMAN  LAW 

trated  by  a  notorious  case  decided  some  years  ago,  in  which 
the  petitioner  asked  for  a  decree  of  nullity  on  the  ground 
that  the  other  party  had  consented  to  marriage  unwillingly 
under  constraint ;  the  constraint  was  proved,  but  the  peti- 
tioner was  shown  himself  to  have  taken  part  in  applying  it, 
and  his  petition  was  therefore  dismissed.  In  this  case  there 
was  evidently  no  true  marriage,  but  a  legal  declaration  of 
the  fact  was  disallowed,  and  the  parties  were  therefore 
debarred  by  law  from  contracting  fresh  unions.  The  oppo- 
site point  of  view  is  illustrated  by  a  case  recently  decided  in 
the  tribunal  of  the  Rota  at  Rome.  A  man  made  at  the  time 
of  his  marriage  a  false  declaration,  which  had  the  effect, 
according  to  the  law  there  administered,  of  vitiating  the  marri- 
age contract ;  he  himself  afterwards  applied  for  a  decree  of 
nullity  on  this  ground ;  the  practice  of  the  court  required 
the  judges  to  investigate  the  fact,  and  to  decide  accordingly  ; 
the  facts  were  found  to  be  as  stated,  and  the  court  had  no 
option  but  to  declare  the  marriage  void.1  This  practice 
certainly  guards  the  realities  of  marriage  more  jealously 
than  the  English  rule,  but  it  has  the  serious  drawback  of 
lending  a  handle  to  one  who  would  entrap  another  into  an 
invalid  marriage. 

The  above  examples  show  how  juridical  difficulties  may 
cause  divergence  from  the  divine  law  of  nature.  More  im- 
portant, and  more  extensive,  are  the  divergences  brought 
about  by  legislation. 

First,  by  way  of  addition.  Human  law  prescribes  some- 
thing over  and  above  what  natural  law  requires.  Ecclesi- 
astical law,  for  example,  requires  that  marriage  shall  be 
contracted  publicly,  in  facie  ecclesiae  ;  the  common  law  of 
Ireland  requires  it  to  be  done  in  the  presence  of  a  minister 
of  religion ;  the  law  of  Scotland  requires  the  presence  of 

1  Se«  Roman  Documents  and  Decrees,  January,  1912,  pp.  80-3. 


DIVERGENCE  FROM  NATURAL  LAW  79 

witnesses,  and  the  previous  publication  of  banns  ;  the  law 
of  France  requires  the  parties  to  attend  at  the  mairie  of 
the  place  where  one  of  them  resides,  and  there  to  make  their 
verbal  contract  before  a  public  official.  In  England,  the 
use  of  the  ritual  of  the  Church  was  once  required  by  law  in 
all  but  some  few  specially  excepted  marriages.  The  public 
registration  of  a  marriage  is  obligatory  in  most  countries. 
These  various  provisions  of  law  may  be  enforced  under 
severe  penalties  ;  they  may  conflict  sharply  with  each  other 
where  there  are  simultaneous  authorities  claiming  obedience 
from  the  same  persons,  as  the  French  law  of  civil  marriage 
conflicts  with  the  ecclesiastical  law,  but  they  do  not  so  far 
run  counter  to  natural  law,  since  they  merely  require 
actions  which  are  naturally  indifferent.  Of  the  same  kind 
are  regulations  concerning  dowry,  the  specific  rendering  of 
mutual  support  and  service,  the  liability  of  husband  or  wife 
for  debts  severally  incurred,  the  legitimacy  of  children,  and 
succession  to  goods  or  honours.  Some  of  these  matters  are 
ordered  in  principle  by  the  natural  law,  but  considerable 
scope  is  left  for  supplementary  legislation. 

Secondly,  as  it  has  been  said,  human  law  may  refuse 
to  enforce  what  nature  requires.  It  may  refuse  to  treat 
adultery,  polygamy,  or  any  other  breach  of  the  marriage 
bond,  as  a  crime.  In  England,  the  old  procedure  for 
compelling  husband  and  wife  to  live  together,  at  the  in- 
stance of  either  party,  has  been  made  inoperative,  and 
a  wife  has  been  almost  entirely  freed  from  legal  liability 
for  the  support  of  her  husband.  These  deflections  from 
the  natural  order  tend  to  obscure  the  character  of  the 
relation  set  up  by  marriage,  especially  for  the  many  who 
have  not  learnt  to  distinguish  between  moral  and  legal  obli- 
gations ;  but  they  do  not  actually  hinder  the  observance  of 
the  divine  law  by  individual  persons,  or  otherwise  raise  any 
embarrassing  conflict  of  authority. 


80  OF  MARRIAGE  IN  HUMAN  LAW 

In  the  third  place,  human  law  may  interpose  impediments 
in  the  way  of  a  marriage  naturally  permissible.  It  must  be 
remembered  that  even  nature  imposes  some  restrictions ; 
not  every  man  is  free  to  marry  every  woman.  It  is  not  easy, 
as  we  have  seen,  to  determine  precisely  what  are  these 
natural  bars ;  the  difficulty  is  increased  by  the  general 
creation  of  artificial  obstacles,  since  it  is  hard  to  draw  the  line 
between  those  which  are  truly  natural  and  those  originating 
in  the  common  opinion  of  mankind.  The  test  of  universality 
is  good  on  the  affirmative  side,  for  if  the  common  sense  of  the 
whole  race  condemn  a  certain  marriage,  this  agreement  can 
hardly  be  put  down  to  anything  but  a  natural  instinct ;  but 
it  is  of  little  value  on  the  negative  side,  since  there  may  be 
a  small  part  only  of  the  human  race  sufficiently  acquainted 
with  certain  truths  of  nature  to  recognize  them  as  law. 
What  is  abundantly  clear  is  the  addition  by  human  authority 
of  many  impediments  to  those  founded  in  nature.  The  laws 
of  savage  tribes  are  rich  in  such  prohibitions,  which  lapse 
with  the  advance  of  civilization  towards  the  true  natural 
conditions  of  human  life.  Strict  rules  of  exogamy  or  of 
endogamy,  complications  of  totemism,  inexplicable  barriers 
of  tabu,  attest  the  activity  of  remote  legislation  setting  up 
hindrances  to  marriage,  which  retain  their  force  long  after 
their  primary  purpose  or  meaning  is  forgotten.  Lingering 
effects  are  found  in  civilized  life,  and  few  systems  of  law 
which  have  been  developed  in  freedom  are  without  such 
traces  of  savagery. 

Possibly  in  historic  connexion  with  these  obscure  im- 
pediments, but  based  on  more  intelligible  reasoning,  are 
deliberate  prohibitions  of  intermarriage  between  persons  of 
different  nations,  of  different  castes,  of  different  religion,  of 
different  social  standing.  The  strict  segregation  of  the  Jews 
dates  from  the  reforms  of  Ezra,  though  it  was  based  on  older 
laws.  The  lus  connubii  was  confined  first  to  Roman 


IMPEDIMENTS  81 

patricians,  then  to  all  citizens  of  the  republic  in  common ; 
it  was  extended  charily  as  a  favour  to  cities  coming  into 
close  alliance.  St.  Paul  seems  to  have  laid  down  the  rule 
for  Christians  that  they  must  marry  only  "in  the  Lord,"  x 
that  is  to  say,  with  believers. 

Restrictions  of  time,  again,  are  imposed  on  lawful  marri- 
ages. By  the  rule  of  the  Church  marriage  has  been  for- 
bidden within  certain  sacred  seasons  ; 2  by  the  law  of  Eng- 
land it  is  forbidden  except  between  certain  hours  of  the  day  ; 
under  the  Swiss  federal  code  a  man  may  not  marry  before 
he  is  twenty  years  of  age,  a  woman  before  she  is  eighteen. 
In  Belgium,  a  widow  may  not  marry  within  ten  months  of 
her  husband's  death. 

Marriage  may  be  forbidden  without  special  consents,  un- 
known to  the  law  of  nature.  A  slave  may  be  held  alto- 
gether incapable  of  marriage,  because  he  is  a  mere  chattel 
of  another  man  and  therefore  unable  to  enter  freely  into  a 
contract ;  but  he  is  more  usually  allowed  to  marry  with  the 
consent  of  his  master.  The  Roman  law,  with  its  exaggera- 
tion of  patria  potestas,  extended  the  requirement  of  paternal 
consent  far  beyond  the  limits  indicated  by  nature.  French 
law  forbids  a  man  to  marry  without  his  father's  consent, 
except  under  conditions  which  do  not  become  operative 
until  he  has  reached  the  age  of  twenty-five  years.  In  Eng- 
land there  is  required  for  the  marriage  of  a  member  of  the 
royal  family,  subject  to  not  unlike  conditions,  the  consent 
of  the  reigning  sovran. 

Personal  disqualifications,  again,  may  be  imposed.  A 
vow  of  religion  is  by  ecclesiastical  law  an  impediment  to 


1  i  Cor.  vii.  39. 

1  Such  was  the  older  discipline,  though  in  modern  times  only  the 
publ-ica  pompa  is  forbidden.  See  Benedict  XIV,  Inst.  EccL,  torn,  ii., 
P-  443- 

M.C.S.  G 


82  OF  MARRIAGE  IN  HUMAN  LAW 

marriage,  and  in  the  greater  part  of  the  Christian  Church 
men  in  holy  orders  also  are  forbidden  to  contract  matri- 
mony. Artificial  impediments  of  consanguinity  and  affinity 
have  been  added  to  those  prescribed  by  nature.  In  several 
systems  of  law  persons  guilty  of  certain  crimes  have  been 
forbidden  to  intermarry,  as  when  a  man  and  woman  have 
conspired  to  murder  the  husband  or  wife  of  one  of  them  with 
a  view  to  marriage. 

The  creation  of  such  impediments  in  restraint  of  natural 
liberty  seems  to  be  within  the  power  of  any  legislature. 
They  may  in  some  cases  be  injurious  or  contrary  to  public 
policy,  as  unduly  interfering  with  an  instinct  of  nature,  but 
they  do  not  involve  any  direct  violation  of  a  natural  law. 
Neither,  it  will  be  observed,  can  they  run  counter  to  one 
another.  A  man  who  bows  to  the  two  several  authorities  of 
Church  and  State,  or  who  is  by  the  accidents  of  birth  and 
residence  made  subject  in  some  measure  to  the  laws  of  two 
several  States,  can  avoid  a  marriage  forbidden  either  by 
the  one  or  by  the  other.  The  prohibitions  are  concurrent 
and  cumulative  ;  they  cannot  be  contradictory.  It  there- 
fore seems  to  be  the  duty  of  a  Christian  to  render  obedience 
to  all  such  prescriptions  of  law. 

A  grave  question,  however,  emerges  when  the  legislature 
proceeds  to  enact  that  a  marriage  contracted  in  defiance  of 
its  prohibition  is  null  and  void.  In  no  system  of  law,  per- 
haps, are  all  prohibitions  supposed  to  have  this  effect ; 
some  only,  of  the  graver  kind,  are  selected  as  nullifying  the 
contract.  Hence  the  distinction  drawn  between  impedi- 
ments which  are  merely  obstructive,  and  diriment  impedi- 
ments which  are  destructive.  Identical  in  effect  is  a  law 
providing  that  a  marriage  shall  be  deemed  void  if  it  be  con- 
tracted without  those  additional  formalities  mentioned 
above.  That  is,  in  fact,  to  make  the  lack  of  due  formality  a 
diriment  impediment.  This  was  done  by  the  Council  of 


DIRIMENT  IMPEDIMENTS  83 

Trent  in  the  case  of  clandestinity ;  a  marriage  contracted 
otherwise  than  in  facie  ecclesiae  had  previously  been  treated 
as  illicit,  but  valid  ;  the  Council  decreed  that  it  should  in 
the  future  be  invalid,  and  further  denned  the  conditions  of 
contracting  in  facie  ecclesiae  by  requiring  the  presence  of  the 
parish  priest  and  of  two  other  witnesses.  Clandestinity,  so 
denned,  thus  became  a  diriment  impediment  wherever  the 
decree  was  promulgated  as  law.  In  England,  a  still  more 
stringent  condition  was  imposed  by  the  Marriage  Act  of  1753, 
which  annulled  almost  all  marriages  contracted  otherwise 
than  with  the  ritual  solemnities  of  the  Church  ;  the  Royal 
Marriages  Act  also  annuls  marriages  contracted  in  disregard 
of  its  provisions.  The  law  of  France  since  1792  in  the  same 
way  not  only  requires  a  marriage  to  be  witnessed  and  regis- 
tered by  a  civil  functionary,  but  also  annuls  any  contract 
lacking  this  formality. 

To  the  creation  of  diriment  impediments  by  human  law 
two  exceptions  have  been  taken.  It  is  urged  on  the  one 
hand  that  marriage  is  a  fact  of  nature,  which  no  positive  law 
can  annihilate ;  if  a  man  and  a  woman  do,  in  fact,  unite 
themselves  in  defiance  of  such  law,  they  may  rightly  be 
punished,  but  their  marriage  stands  in  fact  unassailable.  It 
is  contended  more  technically,  on  the  other  hand,  that  since 
marriage  is  a  sacrament,  and  since  the  essential  matter  and 
form  of  a  sacrament  are  supposed  to  be  ordained  by  God, 
therefore  the  validity  of  a  true  contract  of  marriage,  in 
which  the  matter  and  form  of  this  sacrament  consist,  cannot 
be  destroyed  by  any  human  authority. 

In  defending  the  Council  of  Trent  against  the  second  objec- 
tion, Benedict  XIV  answers  both.  The  matter  and  form  of 
the  sacrament  consist,  he  says,  in  the  actions  and  words  of 
the  parties  by  which  they  mutuo  ac  legitime  deliver  them- 
selves each  to  the  other  ;  the  Council  decided  that  in  future 
this  should  not  be  done  legitime  except  under  the  prescribed 


84  OF  MARRIAGE   IN  HUMAN  LAW 

conditions.1  But  the  sacrament  of  marriage,  as  we  have 
seen,  is  nothing  else  but  natural  marriage  contracted  between 
baptized  persons ;  there  is  required  for  it  nothing  but  the 
qualities  that  make  a  valid  contract  in  the  order  of  nature, 
together  with  the  qualification  of  baptism  in  the  parties. 
Therefore,  if  this  reasoning  is  -to  hold  good,  there  must  be 
added  to  the  other  qualities  required  by  nature  in  a  valid 
contract  of  marriage  the  further  qualification  of  legitimacy ; 
that  is  to  say,  of  accordance  with  the  conditions  from  time 
to  time  imposed  by  human  law.  This  is  no  mere  after- 
thought of  theology.  As  early  as  the  twelfth  century,  Hugh 
of  St.  Victor  so  taught  with  emphasis.2  If  the  need  of 
legitimacy  can  be  thrown  back  to  the  natural  law,  the  diffi- 
culty will  disappear.  And  this  seems  reasonable.  For 
human  society  and  human  law  exist  in  the  order  of  nature 
by;  the  ordinance  of  God,  and  marriage  is  primarily  an 
integral  part  of  that  social  constitution.  It  is,  therefore, 
reasonable  to  contend  that  by  the  divine  law  of  nature  not 
only  the  outward  trappings  of  matrimony,  but  also  the  essen- 
tial conditions  of  the  contract,  are  subject  to  the  control  of 
human  law.  If  this  be  allowed,  both  objections  to  the  crea- 
tion of  a  diriment  impediment  simultaneously  disappear.  It 
will  be  seen,  however,  that  the  reply  as  above  conceived  is  too 
wide.  If  a  contract  of  marriage,  to  be  valid,  must  be  legiti- 
mate, it  will  follow  that  neglect  of  any  legal  requirement  will 
be  fatal,  and  all  impediments  will  be  diriment.  So  much  is 
claimed  in  no  system  of  law,  and  it  is  obvious  that  an  author- 
ity capable  of  creating  a  diriment  impediment  can  also 

1  Instit.  Eccles.  torn,  i.,  p.  371.     He  elsewhere  argued  that    the 
decree  did  not  touch  the  essence  of  the  sacrament,  but  only  ren- 
dered the  parties,  in  the  given  circumstances,  "  inhabiles  ad  contra- 
hendum."     This  has  become  the  commonplace  of  theologians. 

2  De  Sacram.  Christ.  Fidei,  ii.  n,  4.     "  Si  consensus  masculi  et 
feminae  legitimus,  hoc  est  legitime  et  inter  personas  legitimas  fact  us, 
non  fuerit,  coniugium  in  eo  consecrari  non  potest." 


DIRIMENT   IMPEDIMENTS  85 

fence  marriage  about  with  safeguards,  neglect  of  which  are 
expressly  determined  to  have  a  smaller  effect.  What  is 
required  is  that  a  contract  of  marriage  shall  be  legitimate 
only  so  far  as  concerns  the  set  conditions  of  validity. 

But  a  further  objection  has  now  to  be  considered.  It  is 
said  that  human  authority  can  indeed  create  diriment  impedi- 
ments, but  that  where  Christians  are  concerned  this  must  be 
the  authority  only  of  the  Church.  The  ground  taken  is  that 
marriage  is  a  sacrament,  the  administration  of  which  belongs 
exclusively  to  the  Church,  or  merely  that  it  is  sacrum,  and 
therefore  under  the  control  of  the  Church,  "  quae  rerum 
sacrarum  sola  habet  magisterium."  l  The  latter  argument 
implies  the  control  of  all  marriages  by  the  Church,  the  former 
looks  only  to  the  sacramental  marriages  of  Christians.  The 
larger  claim  would  probably  not  be  pressed.  The  Congre- 
gation de  Propaganda  Fide  has  repeatedly  held  converts 
from  heathendom  bound,  in  respect  of  marriages  contracted 
before  their  conversion,  by  diriment  impediments  arising 
out  of  their  own  laws.2  The  narrower  claim  needs  examina- 
tion. Against  it  is  the  judgment  of  St.  Thomas  Aquinas, 
who  says  expressly  that  a  person  may  by  civil  law  be  ren- 
dered ad  matrimonium  contrahendum  illegitima.  The  con- 
text shows  that  he  is  speaking  of  diriment  impediments, 
since  the  matter  in  question  is  consanguinity.3  Indeed,  the 

1  Leo  XIII,  Encycl.  Arcanum,  quoted  by  De  Smet,  De  Sponsa- 
libus  et  Matrimonio,  p.  261,  who  labours  to  reduce  this  obiter  dictum 
to  a  demand  that  the  State  shall  in  such  matters  bow  to  the  altius 
ius  ecclesiae  where  it  exists  in  act. 

2  Gasparri,  Tract.  Can.  de  Matrimonio,  vol.  i.  pp.  172-5.     He  dis- 
misses the  contrary  opinion  as  abstract  scholasticism. 

3  Sum.   Theol.   Suppl.  50,   i.     The  objection  stated  is  "  Plures 
gradus   consanguinitatis    inveniuntur  esse  prohibiti    uno  tempore 
quam  alio  :    lex  autem  humana  non  potest,  ut  videtur,  matrimonio 
impedimenta  praestare,  quia  matrimonium  non  est  ex  institutione 
humana,  sed  divina,  sicut  et  alia  sacramenta."     The  answer  is  : 
"  Matrimonium,  in  quantum  est  in  omcium  naturae,  statuitur  lege 


86  OF  MARRIAGE  IN  HUMAN  LAW 

difficulty  is  easily  solved  by  an  application  of  the  argument 
that  we  have  just  drawn  from  Benedict  XIV.  For  it  is  a 
legitimate  contract  which  is  constituted  a  sacrament ;  there 
cannot,  indeed,  be  a  separation  in  time  between  the  natural 
contract  and  the  sacrament,  as  though  the  contract  were  first 
made  and  then  became  a  sacrament,  for  it  is  indi visibly  one 
act ;  but  the  contract  is  logically  prior  to  the  sacrament, 
and  therefore  conditions  of  legitimacy  may  be  imposed  with- 
out reference  to  its  sacramental  character.  Thus  the  crea- 
tion of  a  diriment  impediment  by  the  State  is  not  an  inter- 
ference in  the  spiritual  ministration  of  the  sacrament.  It 
presents  an  external  obstacle  to  this  ministration,  but  only 
as  the  exercise  of  legitimate  force  may  in  particular  cases 
prevent  a  priest  from  ministering  the  sacrament  of  baptism 
or  of  the  Eucharist.  It  prevents  the  actual  ministration  of 
a  sacrament ;  it  does  not  pretend  to  invalidate  a  sacrament 
duly  ministered.  The  relations  of  Church  and  State  are  often 
delicate  and  difficult  of  adjustment,  but  unless  the  ministers 
and  fabrics  of  the  Church  are  to  be  entirely  exempt  from  civil 
jurisdiction,  this  sort  of  interference  must  be  recognized  as 
possible  and  legitimate  ;  it  requires  only  a  just  occasion  to 
be  reasonable.  The  claim  of  complete  exemption  was  put 
forward  in  the  twelfth  century,  but  now  seems  to  be  univer- 
sally abandoned.  To  make  it  good  in  respect  of  marriage, 
it  would  be  necessary  to  claim  exemption  not  only  for  those 
in  the  sacred  ministry,  but  also  for  all  persons  and  things  in 
their  relation  to  the  sacraments  ;  it  must  be  unlawful  to 
arrest  a  man  on  his  way  to  church,  or  to  put  an  import  duty 
on  wine  that  is  to  be  used  for  the  Eucharist.  In  no  other 

naturae  ;  inquantum  est  sacramentum,  statuitur  lure  divino  ;  in- 
quantum  est  in  officium  communitatis,  statuitur  lege  civili :  et 
ideo  ex  qualibet  dictarum  legum  potest  aliqua  persona  effici  ad 
matrimonium  contrahendum  illegitima."  Although  the  phrase  is 
'  ad  matrimonium  contrahendum,"  the  reference  to  consanguinity 
shows  that  the  answer  extends  to  diriment  impediments. 


DIRIMENT   IMPEDIMENTS  87 

way  could  the  civil  power  be  restrained  from  all  interference 
with  the  sacraments.  But  such  restraint  is  palpably  absurd. 
Therefore  the  State  cannot  on  this  ground  be  denied  the 
right  of  controlling  marriage  by  law.  But  to  control  marri- 
age by  law  is  to  determine  the  legitimacy  of  the  contract, 
and  to  determine  that  a  given  contract  is  in  the  highest  degree 
illegitimate  is  to  create  a  diriment  impediment.  This,  then, 
is  within  the  province  of  the  State. 

It  is  evident  that  a  legislature  may  set  up  many  or  few 
such  impediments.  The  number  is  a  matter  of  public  policy. 
The  present  law  of  Scotland  appears  to  know  no  diriment 
impediments  except  such  as  are  supposed,  rightly  or  wrongly, 
to  rest  on  the  divine  law  ;  consequently,  marriage  is  placed 
as  nearly  as  possible  on  its  natural  basis,  and  there  is  great 
stability  of  the  bond.  On  the  other  hand,  the  Canon  Law 
of  the  Middle  Ages  abounded  in  diriment  impediments,  so 
that  nullifications  of  marriage  were  frequent  and  grave  moral 
disorder  ensued.  It  cannot  be  doubted  that  multiplied 
impediments  are  evil ;  the  moral  effect  of  making  clandes- 
tinity  a  diriment  impediment  is  matter  of  serious  debate. 

To  conclude,  it  appears  that  any  genuine  legislature 
can  create  impediments,  obstructive  or  diriment,  which 
will  bind  the  consciences  of  all  persons  properly  subject  to 
the  same.  A  person  subject  to  two  authorities,  as  a  Chris- 
tian is  subject  alike  to  the  Church  and  to  the  State  under 
which  he  lives,  must  observe  the  regulations  of  both. 
Neither  authority  can  abrogate  the  impediments  created  by 
the  other,  as  neither  can  abrogate  impediments  which  are 
natural.  The  various  laws  do  not  clash  ;  they  are  con- 
current. 

In  the  next  place  we  have  to  consider  the  power  of  dis- 
pensation, absolute  or  contingent,  inhering  in  human  law. 
An  absolute  dispensation,  as  we  have  seen,  is  a  definite 
suspension  or  relaxation  of  Jaw  in  a  particular  case  ;  it  has 


88  OF  MARRIAGE  IN  HUMAN  LAW 

the  effect  of  entirely  removing  the  obligation  to  observe 
the  law ;  it  is  therefore  a  kind  of  abrogation,  and  can  be 
granted  only  by  the  authority  which  has  made  the  law. 
The  legislature  can  dispense,  or  can  commit  specific  powers 
of  dispensation  to  officials. 

The  obligation  of  the  divine  law  of  nature  cannot  be 
thus  set  aside  except  by  God  Himself,  nor  is  there  any 
ground  for  supposing  that  God  either  grants  dispensation 
directly  or  commissions  any  minister  so  to  act.  We  may 
rather  reckon  this  impossible,  since  such  relaxation  is  called 
for  only  on  the  ground  of  some  defect  in  the  law  making 
it  inapplicable  to  a  given  case,  which  is  not  to  be  thought 
of  in  connexion  with  God's  law.  Here,  therefore,  is  no 
room  for  any  variation  from  the  divine  law ;  but  the  exer- 
cise of  the  dispensing  power  must  be  considered  as  a  whole, 
the  lines  of  division  being  not  very  clearly  marked,  and 
absolute  dispensation  must  be  as  far  as  possible  defined 
before  we  review  that  contingent  kind  which  is  alone  applic- 
able to  the  law  of  nature. 

In  every  system  of  human  law  dispensation  is  possible, 
whether  it  be  allowed  in  fact  or  no.  Things  commanded 
in  relation  to  marriage  or  the  contract  of  marriage  may  be 
relaxed,  things  forbidden  may  be  allowed,  impediments 
obstructive  or  diriment  may  be  removed.  Removal  of  a 
diriment  impediment  makes  a  marriage  valid  which  would 
otherwise  be  void  ;  other  dispensations  liberate  the  persons 
to  whom  they  are  granted  either  from  the  obligation  to  act 
in  a  certain  way  or  from  the  consequences  of  a  breach  of 
the  law.  These  obligations  and  consequences  are  either 
moral  or  legal,  and  dispensations  are  therefore  said  to  be 
granted  either  in  foro  conscientiae  or  in  foro  externo.  A 
dispensation  may  be  granted  either  before  the  act  to  which 
it  refers  is  undertaken,  with  a  view  to  its  lawful  performance, 
or  after  it  is  done,  with  a  view  to  its  condonation.  When 


ABSOLUTE  DISPENSATION  89 

a  diriment  impediment  is  removed  after  a  putative  marriage 
has  been  contracted,  two  courses  are  possible  :  either  the 
consent  of  the  parties  is  renewed,  and  the  marriage  is  then 
valid  from  the  date  of  such  renewal,  or  by  a  special  act  of 
grace  the  marriage  is  reckoned  valid  from  the  beginning. 
Such  validation,  technically  called  sanatio  in  radice,  is 
effected  in  English  law  by  a  special  Act  of  Parliament,  in 
favour  of  parties  who  have  inadvertently  and  in  good  faith 
contracted  marriage  without  fulfilling  some  of  the  requisite 
conditions. 

Absolute  dispensation  must  be  provided  for  within  the 
system  of  law  to  which  it  applies.  The  legislature  of  one 
community,  or  its  officials,  cannot  dispense  with  require- 
ments imposed  by  the  laws  of  another  community.  But 
this  rule,  so  obvious  and  inevitable,  is  subject  to  one  con- 
siderable qualification.  By  the  comity  of  nations  the  laws 
of  one  country  are  in  a  measure  recognized  and  enforced 
by  the  courts  of  another  country,  and  the  domicile  of  the 
parties  may  therefore  be  a  matter  of  considerable  impor- 
tance in  matrimonial  causes.  Though  there  is  no  perfectly 
consistent  practice  in  this  regard,  an  English  Court  will 
consider  the  validity  of  a  marriage  contracted  abroad  in 
the  light  of  the  le%  loci.  A  marriage  may  thus  be  held  valid 
which  would  be  invalid  according  to  the  strict  interpreta- 
tion of  English  law,  or  conversely.  But  there  is  no  doubt 
that  a  marriage  so  adjudged  invalid  might  be  validated  for 
the  purposes  of  English  law  by  a  special  Act  of  Parliament. 
For  the  purposes  of  English  law,  I  say,  because  this  dis- 
pensatory act  might  have  no  effect  in  the  other  country  con- 
cerned. What  makes  the  dispensation  possible  in  England 
is  the  fact  that  the  law  under  which  the  marriage  was  de- 
clared void  is  for  this  purpose  adopted,  by  international 
comity,  into  the  body  of  English  law  ;  as  so  adopted,  but 
not  otherwise,  it  can  be  set  aside  by  the  English  legislature. 


go  OF  MARRIAGE  IN  HUMAN  LAW 

A  nice  question  of  conscience  will  ensue,  whether  the  parties 
can  hold  themselves  morally  free  to  continue  in  the  marital 
relation ;  it  will  be  for  them  to  determine,  with  such 
guidance  as  may  be  obtainable,  which  of  the  two  conflicting 
authorities  has  the  greater  claim  upon  their  obedience.  The 
answer  may  partly  depend  upon  their  existing  domicile. 
From  this  there  follows  an  important  corollary.  The 
Church  also  is  a  community  having  the  power  to  create 
impediments  binding  its  own  subjects,  and  to  relax  them 
by  dispensation.  The  Church  also  should  respect  the  laws 
of  other  communities  creating  impediments  which  bind 
their  own  subjects.  The  subjects  of  the  Church  are  in  all 
cases  subject  also  to  a  civil  community,  and  therefore  they 
owe  obedience  to  two  several  authorities.  They  ought  not 
to  disregard  impediments  created  either  by  the  one  autho- 
rity or  by  the  other.  Normally  each  authority  should 
respect  the  impediment  created  by  the  other  ;  the  State 
should  not  recognize  marriages  contracted  by  subjects  of 
the  Church  in  defiance  of  the  rules  of  the  Church,  and  the 
Church  should  not  allow  marriages  contracted  by  subjects 
of  the  State  in  defiance  of  the  rules  of  the  State.  Jealousy 
of  sovran  rights  on  the  one  side  or  the  other,  and  sometimes 
on  both,  usually  prevents  this  reciprocity  ;  but  the  Church, 
as  the  teacher  of  a  higher  regard  for  right,  may  be  expected 
to  act  in  this  way  even  where  reciprocal  action  is  refused. 
It  seems  clear  that  the  Church  ought  not  ordinarily  to  allow 
marriages  contracted  in  disregard  of  civil  law.  Only  in 
case  the  law  should  positively  demand  something  contrary 
to  the  order  of  nature,  or  something  which  would  render 
impossible  obedience  to  the  rules  of  the  Church,  is  there 
ground  for  open  antagonism.  But  when  this  respect  for  law 
is  fully  established,  it  will  still  be  possible,  as  for  the  State, 
so  also  for  the  Church  on  behalf  of  its  own  subjects  and 
for  its  own  purposes,  to  dispense  with  the  observance 


ABSOLUTE  DISPENSATION  91 

of  a  law  not  its  own.  Given  the  most  complete  reciprocity, 
the  State  might  for  its  own  purposes,  as  for  example 
in  regard  to  the  legitimation  of  issue,  validate  a  particular 
marriage  declared  void  by  the  Church  ;  and  equally  the 
Church  might  for  its  own  purposes  validate  a  marriage 
nullified  by  the  State.  The  purposes  of  the  Church  are 
purely  moral  and  spiritual,  and  thus  the  parties  to  a  marri- 
age so  validated  would  be  free  in  conscience  to  live  together 
as  man  and  wife,  and  would  not  be  free  in  conscience  to 
break  their  union  or  to  form  another.  For  example,  a  mar- 
riage contracted  by  a  member  of  the  English  royal  house 
contrary  to  the  provisions  of  the  Royal  Marriages  Act,  and 
so  nullified  by  the  laws  of  England,  might  by  dispensation 
of  the  Church  be  validated  for  ecclesiastical  purposes,  and 
would  then  be  a  marriage  good  for  the  conscience  of  the 
parties.  Such  an  union  may  be  called  a  marriage  of  con- 
science, though  the  phrase  is  more  commonly  used  in  another 
connexion.1 

This  kind  of  cross-dispensation  must  not  be  confused 
with  the  practice  established  in  England,  by  which  officials 
of  the  Church  dispense  with  legal  impediments  created  or 
recognized  by  the  laws  of  the  State.  That  anomalous  juris- 
diction is  due  to  the  suppression  of  the  distinction  of  Church 
and  State  during  the  Middle  Ages,  an  abiding  consequence 
of  which  is  that  rules  of  the  Church  have  been  incorporated 
into  the  laws  of  the  realm.  Of  this  there  is  more  to  be  said 
later ;  it  is  enough  to  say  here  that  dispensations  granted 
by  bishops  and  their  officials  have  both  civil  and  ecclesias- 
tical effect.  This  combination  of  functions  appeared  when 
Church  and  State  fell  apart  and  the  State  began  to  have  its 
separate  marriage  law.  By  the  present  law  of  England,  all 
marriages  contracted  without  legal  formalities  are  ordinarily 
treated  as  null  and  void ;  clandestinity,  which  was  for- 

1  Below  p.  99. 


92  OF  MARRIAGE  IN  HUMAN  LAW 

merly  an  obstructive  impediment  in  the  law  common  to 
Church  and  State,  is  thus  made  a  diriment  impediment 
in  the  laws  of  the  realm.1  The  customary  bishop's  licence, 
however,  dispensing  with  publication  of  banns,  or  a  faculty 
from  the  Archbishop  of  Canterbury  more  largely  dispen- 
sing with  other  forms,  commonly  known  as  a  "  special 
licence,"  is  effective  for  the  removal  of  the  impedi- 
ment. These  dispensations  consequently  have  a  double 
effect,  removing  both  the  old  ecclesiastical  impediment  and 
the  new  civil  impediment ;  in  the  archbishop  or  bishop 
must  be  recognized  two  functions,  for  he  is  at  once  an  officer 
of  the  Church  in  his  hierarchical  capacity,  and  an  officer  of 
State  constituted  by  statute. 

The  power  of  absolute  dispensation  must  be  recognized 
as  one  that  is  lawfully  exercised,  but  also  as  one  that  should 
be  used  with  extreme  caution.  Dispensation  is  vulnus  in 
legem,  and  frequent  disturbances  of  the  kind  weaken  the 
law  to  the  verge  of  destruction.  The  marriage  law  of  medie- 
val Europe  was  in  this  way  brought  into  contempt,  and 
lost  almost  all  power  of  ordering  social  life.  But  contempt 
of  human  law  carries  with  it  as  a  consequence  contempt  of 
the  divine  law,  since  in  the  general  opinion  of  men  the  two 
are  seldom  clearly  distinguished,  and  that  which  has  the 
more  visible  and  material  sanctions  either  buttresses  the 
spiritual  authority  of  the  other,  or  drags  it  down  in  its  own 
ruin.  Thus  the  practice  of  absolute  dispensation,  though 
not  directly  contravening  the  divine  law,  may  seriously  hin- 
der its  effective  working.  But  excess  of  dispensation  is 
obviously  brought  about  by  excessive  regulation  ;  when 
requirements,  prohibitions  and  impediments  are  multi- 
plied, individual  relaxations  are  inevitably  numerous,  for 
strict  observance  becomes  a  burden  that  cannot  be  endured. 

1  Infra,  pp.  206*$. 


CONTINGENT  DISPENSATION  93 

That  was  the  fault  of  the  medieval  marriage  law.  The 
happiest  law  is  that  which  adds  least  to  the  law  of  nature, 
and  can  therefore  insist  most  strictly  on  the  observance 
of  the  whole. 

A  contingent  dispensation  is  grounded  not  on  the  in- 
applicability of  the  law  regarded  in  itself,  but  on  the  neces- 
sity of  the  individual  subject.  It  follows  the  maxim,  Nemo 
tenetur  ad  impossibile.  There  is  no  assumption  that  the 
law  is  in  a  particular  case  bad  law,  and  therefore  to  be  set 
aside,  or  mischievous  in  operation  and  therefore  to  be  sus- 
pended ;  enforcement  of  the  law  might  be  in  all  respects 
salutary,  but  the  fact  is  recognized  that  the  subject  cannot 
comply.  Thus  the  most  perfect  and  the  most  universal 
law  is  open  to  dispensation  of  this  kind. 

Who  can  dispense  in  this  case  ?  The  authority  of  the 
legislator  is  not  here  required,  for  there  is  no  question  of 
abrogating  or  relaxing  the  law.  Indeed  the  dispensation 
is  in  a  sense  automatic,  for  it  follows  from  the  mere  fact 
of  the  impossibility  of  compliance.  A  man  who  in  his  own 
conscience  knows  himself  to  be  unable  to  obey  is  ipso  facto 
dispensed  in  conscience  from  the  obligation  to  obey.  But 
for  two  reasons  this  clearing  of  the  conscience  will  be  in- 
sufficient. In  the  first  place,  no  man  has  a  merely  indivi- 
dual life  ;  obedience  to  law  is  a  matter  of  social  observance, 
and  the  impossibility  of  obedience  needs  some  kind  of  social 
recognition  if  it  is  to  be  a  complete  discharge.  In  the  second 
place,  even  as  regards  the  individual  aspect  of  the  case,  the 
inevitable  bias  of  self-interest  forbids  a  man  to  be  judge 
in  his  own  cause,  and  in  all  grave  matters  the  prima  facie 
judgment  of  conscience  should  be  referred  to  an  independent 
tribunal. 

We  speak  of  a  tribunal,  and  it  has  been  held  that  con- 
tingent dispensation  is  essentially  a  juridical  act.  "  It  is 
improperly  called  dispensation,"  says  a  well-known  author, 


94  OF  MARRIAGE  IN  HUMAN  LAW 

"  because  it  is  only  a  judicial,  whereas  dispensation  proper 
is  a  legislative,  act,  being  of  the  nature  of  a  temporary  repeal 
of  law/'  1  It  is  held,  indeed,  by  Esmein  that  prior  to 
the  eleventh  century  all  dispensations  in  ecclesiastical  law 
were  of  this  character,  consisting  merely  in  a  remission  of 
the  disciplinary  penance  usually  imposed  on  breakers  of 
the  law.2  But  whatever  may  be  the  history  of  the  practice, 
whether  in  the  Church  or  in  any  other  society,  this  is  not 
an  adequate  account  of  the  dispensing  power.  A  dispen- 
sation differs  from  an  act  of  grace  by  which  punishment 
is  remitted  or  sentence  is  withheld  in  favour  of  the  guilty ; 
it  is  a  declaration  that  no  guilt  is  incurred,  that  the  act  in 
question  is,  in  view  of  the  circumstances,  innocent  and  lawful. 
The  judicial  act  to  which  it  corresponds  is  complete  acquit- 
tal. But  neither  is  this  an  adequate  comparison ;  for 
acquittal  follows  the  imputation  of  an  offence  done,  while 
a  dispensation  is  more  frequently  a  declaration,  made  before- 
hand, that  a  thing  may  lawfully  be  done.  Therefore,  when 
a  tribunal  is  spoken  of  in  this  connexion,  the  word  must 
not  be  taken  in  any  strict  sense.  It  is  enough  that  the 
declaration  be  made  by  some  competent  authority,  to  which 
the  person  dispensed  owes  allegiance. 

The  dispensing  authority  need  not  stand  in  any  particu- 
lar relation  to  the  law  which  is  involved.  For  the  only 
matter  to  be  determined  is  the  question  whether  the  sub- 
ject has  a  valid  excuse  for  not  observing  the  law.  For  the 
due  ordering  of  this  matter  the  only  thing  requisite  is  a 
proper  relation  between  the  authority  and  the  person  dis- 

1  E.  G.  Wood,  The  Regal  Power  of  the  Church,  p.  75. 

2  Esmein,  Le  Manage  en  Droit  Canonique,  vol.  ii.  pp.  319-22.     The 
change  took  place,  he  says,  when  the  sacred  canons  ceased  to  be 
merely  disciplinary  and  became  laws,  since  "  les  lois  sont  de  leur 
nature  imperatives,  et  s'imposent  au  juge."     Consequently  dispen- 
sation became  "  1'exercice  du  pouvoir  16gislatif." 


DISPENSATION  FROM  DIVINE  LAW          95 

pensed.  No  system  of  law,  therefore,  need  make  provision 
for  contingent  dispensation,  and  such  dispensation  from  any 
law,  even  the  divine  law  of  nature,  can  be  granted  where- 
ever  a  legitimate  human  authority  is  constituted.  It  is 
possible,  indeed,  to  argue  that  all  human  authority  is  ulti- 
mately founded  in  the  law  of  nature,  which  thus  confers 
the  power  in  question ;  but  that  refinement  is  unnecessary. 
Every  law  contains  implicitly  provision  for  the  case  of 
necessity,  but  it  need  not  prescribe  how  the  measure  of 
necessity  shall  be  judged.  It  is  enough  that  man  lives 
inevitably  in  a  social  order  and  under  a  social  authority, 
which  has  an  inherent  right  to  direct  and  control  his  actions. 

It  is  obvious  that  contingent  dispensation  is  important 
chiefly  as  applied  to  divine  law.  Human  law  admits  of 
absolute  dispensation  ;  divine  law  does  not.  It  ceases  to 
bind  only  in  the  case  of  necessity.  Necessity  is  not  to  be 
interpreted  too  rigidly.  It  is  not  only  sheer  compulsion 
or  physical  impossibility  that  is  to  be  reckoned  with  ;  ac- 
count must  also  be  had  of  human  frailty.  The  necessity 
which  justifies  dispensation  is  a  moral  necessity.  The 
hardness  of  men's  hearts  was  a  ground  for  the  permission 
of  divorce  under  the  Mosaic  law ;  the  permission  was 
grossly  abused,  but  was  not  on  that  account  entirely 
done  away. 

A  moral  necessity,  then,  is  sufficient  ground  for  contin- 
gent dispensation.  The  necessity  must  be  real.  The  value 
of  the  dispensation  depends  on  this  reality.  An  erroneous 
judgment  may  discharge  a  delinquent  from  the  imputation 
of  guilt  before  the  tribunal  by  which  judgment  is  given, 
but  it  does  not  discharge  him  from  all  obligation  if  his  own 
conscience  be  better  informed.  The  dispensation  remains 
always  contingent.  Subject  to  this  contingency  a  human 
authority  can  dispense  its  own  subjects  from  the  obser- 
vance of  the  divine  law  ;  it  being  clearly  understood,  as 


96  OF  MARRIAGE  IN  HUMAN  LAW 

Benedict  XIV  has  said,  that  there  is  no  loosening  of  the 
binding  character  of  that  law,  but  only  an  interpretative 
ruling  that  in  the  circumstances  of  the  case  a  particular 
person  does  not  come  under  the  law.1  This  being  the 
largest  claim  made  for  the  dispensing  power,  we  may  con- 
fine our  attention  to  it,  remembering  that  what  is  allowable 
in  regard  to  divine  law  may  with  better  reason  be  done 
also  where  human  law  is  concerned. 

Of  contingent,  as  of  absolute  dispensations  in  the  matter 
of  marriage,  there  are  two  purposes.  They  are  intended 
either  to  remove  impediments,  and  so  to  validate  and  regu- 
larize a  marriage,  or  to  abate  the  obligations  laid  upon  those 
who  are  married.  It  will  be  convenient  to  consider  the 
latter  purpose  first. 

The  natural  law  requires  husband  and  wife  to  abide  in 
permanent  union,  with  complete  community  of  life.  From 
this  ideal  there  are  two  possible  derogations.  They  may 
separate  entirely,  or  may  remain  united  in  a  state  of  imper- 
fect community.  We  have  to  ask  whether  such  depar- 
tures from  the  divine  rule  are  contingently  permissible. 

Complete  separation,  a  mensa  et  toro  as  the  phrase  runs, 
is  properly  called  divorce.  This  word  is  frequently  abused 
to  mean  a  judicial  decree  either  declaring  the  nullity  of  a 
marriage  or  purporting  to  dissolve  the  bond  of  a  valid  mar- 
riage, and  its  proper  sense  is  sometimes  even  excluded. 
That  such  separation  will  sometimes  be  necessary  is  in- 
contestable, for  it  may  result  from  natural  causes  beyond 
the  control  of  the  parties,  but  there  are  moral  necessities 
also  which  may  justify  it.  For  either  party,  however,  to 
refuse  cohabitation  is  to  claim  that  right  of  judging  in  one's 
own  cause  which  is  intolerable  in  social  life,  and  the  inter- 
vention of  lawful  authority  is  therefore  required.  Divorce 

1  De  Synodo  Dioecesana,  vii.  i,  7. 


DIVORCE  97 

must  be  regulated  by  law.  There  is,  perhaps,  no  system  of 
law  which  makes  no  provision  for  it  ;  in  many  systems  it 
is  allowed  with  injurious  frequency  and  ease.  It  was  in 
face  of  a  question  about  a  lax  interpretation  of  the  Mosaic 
law  that  our  Lord  took  opportunity  to  assert  anew  the 
permanence  of  marriage  and  the  closeness  of  the  union 
effected  ;  but  He  recognized  the  dispensing  authority  of 
the  law.  "  Moses,"  He  said,  "  for  your  hardness  of  heart 
suffered  you  to  put  away  your  wives,  but  from  the  begin- 
ning it  was  not  so."  l  Divorce  was  contrary  to  the  natural 
institution,  but  allowed  for  a  just  cause.  The  hardness  of 
heart  which  justified  it  has  been  variously  interpreted  to 
mean  that  a  man  would  treat  his  wife  with  intolerable 
harshness  if  compelled  to  live  with  her  against  his  will,  or 
that  human  obstinacy  and  selfishness  rendered  the  strict 
observance  of  the  natural  law  impossible.  He  further 
taught  the  indissolubility  of  the  bond  by  asserting  that  even 
after  divorce  the  parties  were  still  capable  of  adultery,  but 
this  was  an  enlargement  of  the  answer  demanded.  The 
immediate  question  was  the  lawfulness  of  divorce.  Was 
none  to  be  allowed  ?  The  Mosaic  dispensation  seemed  to 
be  reprobated,  and  the  disciples  discontentedly  observed 
that  this  made  marriage  altogether  inexpedient.  To 
them  in  private  our  Lord  intimated  that  exceptions 
were  possible  :  "  All  men  cannot  receive  this  saying,  but 
they  to  whom  it  is  given  ...  He  that  is  able  to  receive 
it,  let  him  receive  it."  There  were  some  to  whom  the  rigour 
of  the  law  would  not  apply,  and,  as  we  have  seen  above,2 
one  of  the  evangelists  has  inserted  a  reference  to  the  excep- 
tional case  of  fornication. 

The  Christian  Church  has  reluctantly  used  the  liberty 
thus  accorded,  pronouncing  divorce  in  the  case  of  an  un- 
faithful wife.  The  unfaithful  husband,  though  the  sin  of 

1  St.  Matthew  xix.  n.  a  Supra,  p.  24. 

M.C.S.  H 


98  OF  MARRIAGE  IN  HUMAN  '  LAW 

adultery  is  no  less  in  him  that  in  the  woman,  does  not  do 
his  wife  the  wrong  of  imposing  on  her  a  spurious  offspring, 
and  his  offence  has  not  as  a  rule  been  considered  sufficient 
ground  for  divorce  unless  it  be  accompanied  by  aggravating 
circumstances.  But  these  circumstances  have  thus  been 
recognized  as  further  grounds  for  divorce,  and  have  in  their 
turn  been  accepted  as  sufficient  in  themselves.  The  prac- 
tice in  different  parts  of  the  Church  is  not  uniform,  but  it 
may  be  said  generally  that  any  conduct  of  husband  or  wife 
making  cohabitation  intolerable,  and  frustrating  the  true 
ends  of  marriage,  is  considered  sufficient  ground  for  the 
exercise  of  the  dispensing  power,  in  the  form  of  a  judgment 
of  divorce.  Theologians  commonly  reduce  these  causes  to 
the  three  heads  of  adultery,  apostasy,  and  grave  peril  to 
soul  or  body. 

The  greater  laxity  of  the  civil  laws  of  some  modern  states, 
allowing  divorce  for  light  causes  of  disagreement,  or  even 
by  mutual  consent,  do  serious  wrong  to  the  natural  law ; 
the  power  of  dispensation  inherent  in  human  society  is 
not  to  be  denied  even  here,  but  it  is  a  grave  question  whether 
a  Christian  can  hold  himself  free  to  take  a  liberty  thus 
accorded.  Yet  separation  by  mutual  consent  is  allowed 
by  the  Church  in  certain  cases.  St.  Paul's  rule,  that  the 
married  may  withdraw  from  one  another  for  a  time  to  give 
themselves  to  prayer,  has  been  extended  to  cover  the  life- 
long separation  of  a  husband  and  wife  devoting  themselves 
to  religion. 

Short  of  divorce  the  strictness  of  the  unity  of  marriage 
may  be  relaxed  by  a  modification  of  the  common  life  re- 
quired by  natural  law.  It  may  be  reduced  in  the  two  par- 
ticulars of  property  and  of  social  standing. 

An  abatement  of  community  of  goods  is  effected  by  the 
custom  of  dowry,  by  the  English  use  of  marriage  settle- 
ments under  the  law  of  trusts,  or  by  such  special  legislation 


LIMITATIONS   OF  COMMON   LIFE  99 

as  the  Married  Women's  Property  Act.  More  general  regu- 
lations are  usual  in  modern  states.  The  Federal  Code  of 
Switzerland  recognizes  three  dispositions  of  property  be- 
tween husband  and  wife,  one  of  which  must  be  adopted  by 
the  parties  contracting  marriage.  It  is  not  easy  to  deter- 
mine when  such  laws  pass  the  bounds  of  legitimate  dispen- 
sation, and  become  direct  contradiction  of  the  natural 
order.  They  may  easily  destroy,  in  those  subject  to  their 
influence,  the  sense  of  mutual  dependence  and  support 
without  which  the  good  of  marriage  cannot  be  realized. 
They  do  not,  however,  necessarily  prevent  the  complete 
fulfilment  of  the  natural  law  by  the  voluntary  action,  joint 
and  several,  of  the  parties  to  a  marriage,  who  may  never- 
theless hold  themselves  free  in  conscience  to  take  advan- 
tage of  them  in  the  case  of  necessity. 

An  abatement  of  social  standing  is  expressly  allowed  in 
the  case  of  morganatic  marriage,  or  Ehe  zur  linken  Hand, 
once  fairly  general  but  now  peculiar  to  the  princely  houses 
of  Germany.  Such  marriage  is  valid  and  complete  in  all 
respects,  save  that  the  wife,  being  herself  of  inferior  birth, 
does  not  share  the  rank  of  her  husband  or  property  attaching 
to  his  rank.  Similar  in  effect  is  the  union  known  to  theo- 
logians as  matrimonium  conscientiae,  which  is  not  clandes- 
tine in  the  sense  of  lacking  the  elements  of  publicity  strictly 
required  by  law,  but  is  secret  in  the  sense  of  not  being  openly 
acknowledged  or  of  public  repute,  so  that  it  does  not  carry 
any  of  the  social  consequences  attaching  to  a  lawful  mar- 
riage. By  the  constitution  Satis  vobis  of  Benedict  XIV  mar- 
riages of  this  kind  were  definitely  regulated  for  the  Churches 
subject  to  the  papacy ;  but  the  recognition  of  such  an 
arrangement  goes  back  to  the  beginnings  of  Christianity, 
and  is  illustrated  by  those  marriages  of  noble  women  with 
slaves,  for  allowing  which  Callistus  of  Rome  was  attacked 
by  Hippolytus. 


TOO  OF  MARRIAGE  IN  HUMAN  LAW 

These  various  dispensatory  laws  may  be  approved  in 
principle,  there  being  no  precise  limits  to  the  power  exer- 
cised by  any  lawful  authority  in  adjudging  on  cases  of  neces- 
.  sity  ;  but  in  practice  many  of  them  will  be  found  to  be 
unreasonable  and  harmful  to  public  morals.  The  Church 
itself  has  not  an  unblemished  record  in  this  respect.  The 
majesty  of  the  natural  order  has  been  impaired  ;  willing- 
ness to  endure  the  occasional  hardships  incidental  to  all 
strict  observance  of  rule  has  been  weakened ;  an  ever 
extending  laxity  has  shown  how  the  practice  of  dispensa- 
tion may  eat  out  the  heart  of  law.  There  is  needed  now, 
no  less  than  at  the  first  preaching  of  the  Gospel,  a  return  to 
the  severity  of  the  divine  institution. 

If  we  now  turn  to  the  other  purpose  of  these  contingent 
dispensations,  we  shall  observe  that  the  impediments  of 
the  natural  law  are  hardly,  if  at  all,  subject  to  interference. 
Physical  incapacity  for  marriage  obviously  cannot  be  re- 
moved by  any  exercise  of  authority.  A  contract  between 
persons  of  inadequate  age  cannot  set  up  a  true  marriage, 
but  the  formal  contracting  might  be  allowed,  and  has  been 
allowed,  with  a  view  to  renewal  or  completion  when  the 
parties  become  competent ;  and  such  a  contract  will  cer- 
tainly have  whatever  binding  effect  may  be  given  to  it  by 
positive  law.  Insufficient  consent  is  an  irremediable  cause 
of  nullity,  and  no  authorization  of  a  pretended  contract 
under  conditions  of  force  or  fraud  could  have  real  effect ; 
nor  is  sanatio  in  radice  possible  where  there  was  no  inten- 
tion to  marry.  The  impediments  of  previous  marriage t 
however,  and  of  consanguinity  or  affinity,  are  in  a  different 
case,  for  marriage,  though  forbidden,  is  not  here  naturally 
impossible.  Can  a  dispensation  remove  the  prohibition  ? 

If  the  natural  bar  of  consanguinity  be  effective  only  in 
the  ascending  and  descending  line,  it  may  well  be  doubted 
whether  any  authority  could  justify  a  departure  from  the 


DISPENSATION  FOR  CONSANGUINITY        101 

rule,  a  necessity  of  any  kind  being  almost  inconceivable. 
Unbridled  lust  has  broken  through  even  these  barriers, 
but  the  common  sense  of  mankind  is  unanimous  in  shrinking 
with  horror  from  such  incest.  The  corresponding  bar  of 
affinity  is  almost  as  impregnable  in  human  experience  ; 
the  effrontery  of  Absalom  and  the  counsel  of  Achitophel 
exhibit  a  practice  familiar  in  the  record  of  Asiatic 
monarchies,  but  St.  Paul's  strong  language  testifies  to  the 
abhorrence  with  which  such  unions  were  regarded  even  in 
the  most  corrupt  regions  of  Hellenic  life.1  In  the  doubtful 
case  of  marriage  with  a  sister  being  equally  contrary  to 
divine  law,  there  are  many  instances  of  dispensation,  from 
Abraham  downwards ;  but  the  Church  has  never  granted 
one,  and  modern  civilization  shows  no  signs  of  breaking 
away  in  this  respect  from  Christian  tradition.  The  impedi- 
ment of  affinity  in  the  same  degree  was  long  regarded  in 
Christendom  as  equally  immovable.  Alexander  VI  is  said 
to  have  been  the  first  Pope  who  ventured  on  a  dispensation, 
and  this  was  justified  by  the  growing  conviction  that  the 
impediment  was  only  de  iure  ecclesiastico.  The  contrary 
contention  of  Henry  VIII  of  England,  though  fortified  by 
appeals  to  the  older  practice  and  theory,  was  only  a  des- 
perate device  for  establishing  the  nullity  of  his  marriage 
with  Katharine  of  Aragon.  The  surest  ground  is  taken 
if  we  are  content  to  say  that  the  marriage  of  persons  con- 
nected in  the  direct  line  is  forbidden  by  natural  law,  and 
that  no  dispensation  is  possible,  other  impediments  of  this 
kind  being  referred  to  human  law.  But  since  there  is  a 
doubt  whether  some  of  these  also  be  not  founded  in  the 
divine  law,  the  Church  may  well  discountenance  dispensa- 
tion in  such  cases,  and  forbid  Christians  to  act  upon  it,  by 
whatever  authority  granted. 

The  prohibition  of  polygamy  sets  up  the  impediment  of 
1  i  Cor.  v.  i. 


102  OF   MARRIAGE   IN   HUMAN   LAW 

previously  existing  marriage,  or  impedimentum  ligaminis. 
Being  already  married,  a  man  or  woman  may  not  take 
another  consort.  Polygamy  is  either  simultaneous  or  suc- 
cessive. The  strong  feeling  of  the  Christian  Church  against 
second  marriages  has  caused  the  marriage  of  a  widower  or 
widow  to  be  called  successive  bigamy,  but  the  words  are 
here  used  in  the  more  natural  sense  of  a  marriage  contracted 
while  one  of  the  parties  has  a  husband  or  wife  still  living 
and  separated  by  divorce.  The  two  kinds  of  polygamy 
are  both  alike  infractions  of  the  divine  law,  but  they  are  not 
on  exactly  the  same  footing. 

Simultaneous  polygamy  has  been  allowed  in  many  sys- 
tems of  law,  but  has  never  obtained  a  recognized  standing 
in  Christendom.  To  make  it  normal  is  to  run  so  directly 
counter  to  the  natural  law  that  doubts  have  been  enter- 
tained whether  in  that  case  true  marriage  subsists  at  all. 
An  English  Court  of  Justice  has  held  that  an  Englishman 
contracting  marriage  with  a  Kaffir  woman  in  South  Africa, 
according  to  the  rites  and  customs  of  her  tribe,  must  have 
intended  a  polygamous  union,  and  the  marriage  was  on 
that  ground  annulled.  But  the  common  sense  of  mankind 
is  against  this  judgment,  and  the  Church  has  usually  recog- 
nized the  first  wife  of  a  polygamist  as  validly  married  to 
him,  while  demanding  his  separation  from  the  rest  as  a  con- 
dition of  baptism.1  There  are  those  who  contend  that 
polygamy  may  be  allowed,  if  not  for  Christians,  still  for 
others  who  have  not  the  same  succours  of  grace,  on  the 
ground  of  a  moral  necessity.  It  was  for  this  cause  that 
Luther  and  Melanchthon,  alone  among  Christian  teachers, 
permitted  Philip  of  Hesse  to  take  a  second  wife  ;  their 
action,  kept  as  secret  as  possible,  purported  to  be  a  dispen- 

1  There  are  two  alternative  practices.  One  is  to  allow  the  hus- 
band to  retain  any  one  of  his  wives.  The  other  is  to  invalidate 
all  the  marriages  as  essentially  polygamous. 


DISPENSATION  FOR   POLYGAMY  103 

sation  in  foro  conscientiae.  St.  Augustine  pleaded  for  the 
patriarchs  of  the  Old  Testament  a  pure  desire  to  fulfil  the 
divine  purpose  by  engendering  the  promised  Seed,  and 
seems  to  have  held  them  on  this  ground  implicitly  dispensed 
and  allowed  to  multiply  wives.  Henry  VIII  of  England 
is  said  to  have  sought  from  Rome  a  similar  dispensation  with 
a  view  to  begetting  an  heir  male  for  the  public  good.  But 
in  every  case  the  plea  of  necessity  appears  to  break  down ; 
where  it  is  urged  with  the  greatest  appearance  of  reason, 
for  lusty  peoples  of  imperfect  civilization,1  it  leads  to  inevi- 
table injustice,  since  the  privilege  of  the  rich  and  powerful 
positively  diminishes  the  opportunities  of  marriage  for  the 
rest.  The  conclusion  seems  to  be  imperative,  that  dispen- 
sations for  simultaneous  polygamy,  though  given  de  facto, 
are  naturally  invalid,  as  being  neither  just  nor  necessary. 
A  marriage  founded  on  such  dispensation  is  not  therefore 
to  be  reckoned  true  marriage. 

Successive  polygamy  is  less  odious.  A  husband  and 
wife  being  legitimately  divorced,  most  of  the  reasons  urged 
against  polygamy  have  little  or  no  force  to  hinder  either  of 
them  from  taking  a  fresh  partner.  It  is  not  therefore  sur- 
prising that  many  systems  of  law  allow  the  marriage  of 
the  divorced.  Is  this  permissible  on  the  plea  of  necessity  ? 

A  law  which  purports  to  effect  the  absolute  dissolution 
of  the  marriage  bond  must  be  unconditionally  condemned. 
It  is  not  so  much  an  infraction  of  the  divine  law  as  an 
impotent  pretence,  an  attempt  to  alter  a  fact  of  nature, 
and  a  denial  of  the  existence  of  that  which  exists.  It  may 
be  compared  with  a  law  which  should  purport  to  destroy 
the  kinship  of  a  brother  and  a  sister,  of  a  parent  and  a  child. 
But  a  law  permitting  the  marriage  of  the  divorced,  even 
if  it  be  falsely  conceived  in  this  sense  by  the  legislature, 

1  As  by  Mr.  E.  D.  Morel  in  his  Nigeria,  its  Peoples  and  its  Problems. 


104  OF  MARRIAGE  IN  HUMAN  LAW 

may  be  regarded  from  another  point  of  view.  It  may  be 
taken  as  dispensing  with  the  impediment  of  ligamen,  and  so 
allowing  a  modified  polygamy.  Is  this  permissible  ? 

We  must  weigh  the  fact  that  such  dispensations  are 
granted,  not  only  in  communities  which  permit  simultaneous 
polygamy  and  therefore  cannot  forbid  this  less  odious  kind, 
but  also  in  the  Christian  Church.  The  Eastern  Churches 
have  for  some  centuries  allowed  certain  divorced  persons  to 
marry.  The  practice  has  been  severely  blamed  by  Western 
authorities,  but  perhaps  on  mistaken  grounds  ;  it  does  not 
imply,  as  seems  to  have  been  thought  at  the  Council  of 
Trent,  that  the  bond  of  marriage  is  dissolved.1  If  that 
were  the  case,  both  parties  would  ipso  facto  be  free  to  marry. 
But  what  usually  happens  is  that  permission  to  marry  is 
grudgingly  accorded  to  one  party  and  withheld  from  the 
other.  This  can  hardly  be  construed  into  anything  but  a 
dispensation,  allowing  marriage  in  spite  of  the  impediment 
set  up  by  the  still  subsisting  bond.2  It  is  then  a  dispensation 
for  a  kind  of  polygamy ;  a  serious  breach  made  in  the  law 
of  nature,  but  not  a  denial  of  natural  facts,  or  a  falsification 
of  the  real  nature  of  marriage.  A  benevolent  interpretation 
may  bring  within  the  same  category  the  private  Acts  of 
Parliament  enabling  divorced  persons  to  marry,  which 
formerly  dispensed  with  the  general  law  for  England,  and 

1  Pallavicino,  Istoria  del  Cone,  di  Trento,  lib.  xxii,  cap.  4,  explains 
how  the  Council,  at  the  instance  of  the  Republic  of  Venice,  abstained 
from    anathematizing    those   who   taught   that    marriage    is    dis- 
solved by  adultery,  and  this  to  avoid  offending  the  Greeks  in  the 
Venetian  islands. 

2  This  is  clearly  stated  by  Milasch,  Das  Kirchenrecht  der  Morgen- 
Idndischen  Kirche,  p.  598.      Treating  the  impediment   of   existing 
marriage   as  absolute,  he  adds  :    "  Eine  Ausnahme  hiervon  ist  nur 
dann  zulassig,  wenn  die  bestehende  Ehe    aus    einem     gesetzlichen 
Grunde  getrennt  wurde,  und  dem  betreffenden  Ehegatten  von  der 
kompetenten  Obrigkeit  das  Recht  eingeraumt  wurde,  eine    zweite 
Ehe  zu  schliessen."     See  below,  p.  127. 


DISPENSATION   FOR   POLYGAMY  105 

are  still  in  use  for  Ireland.  A  law,  however,  expressly 
purporting  to  dissolve  the  union  of  the  married  as  radically 
as  when  it  has  been  adjudged  invalid  ab  initio,  even  if  the 
dissolution  be  decreed  at  the  discretion  of  a  judge  as  a  relief 
to  one  party,  can  hardly  be  so  interpreted.  It  is  nothing 
else  but  an  assertion  that  by  a  legal  fiction  a  natural  relation 
has  ceased  to  exist ;  in  other  words,  a  natural  fact  is  not 
to  be  regarded  as  fact.  A  law  like  that  of  some  American 
States,  which  purports  to  dissolve  a  marriage  on  the  ground 
of  adultery  but  forbids  the  adulterous  party  to  contract  a 
new  marriage,  is  with  difficulty  reduced  to  any  logical 
sequence.  The  adulterer  is  declared  to  be  unmarried,  but 
his  previous  adultery  seems  to  be  made  a  diriment  impedi- 
ment disabling  him  from  marriage.  It  is  impossible,  in 
this  connexion,  to  overlook  a  fantastic  theory,  propounded 
by  some  loose  thinkers,  that  adultery  ipso  facto  dissolves 
the  bond  of  marriage.  On  this  showing  a  husband  or  wife 
might  cease  to  be  married,  without  knowing  it,  through  the 
secret  sin  of  the  other  party ;  and  either  party  could  dis- 
solve a  marriage  at  pleasure  by  a  deliberate  act  of  unfaith- 
fulness. It  is  sufficient  to  say  that  no  system  of  law  tolerates 
such  an  absurdity.  The  English  law  of  divorce,  though 
widely  departing  from  the  natural  order,  is  even  more  in 
conflict  with  this  theory  ;  for  the  adultery  of  both  parties, 
which  should  be  more  effective  as  a  dissolvent  than  the 
adultery  of  one,  may  even  prevent  the  issue  of  a  decree  of 
dissolution. 

What  is  professedly  a  dissolution  of  marriage  may  thus 
in  some  cases  be  interpreted  in  a  sense  less  contrarient  to 
the  nature  of  things,  and  taken  as  a  permission  to  marry  in 
spite  of  the  impediment  set  up  by  an  existing  marriage. 
In  face  of  the  practice  of  a  large  part  of  the  Church,  the 
legitimacy  of  such  dispensation  can  hardly  be  contested, 
and  the  nature  of  human  authority  compels  the  admission 


io6  OF  MARRIAGE  IN   HUMAN  LAW 

that  what  the  Church  can  do  in  such  a  matter  can  be  done 
also  by  the  State.  But  it  seems  clear  that  either  power 
may  forbid  its  subjects  to  act  on  such  a  dispensation  given 
by  the  other  power.  There  is  not  the  same  duty  of  mutual 
recognition  as  in  the  case  of  the  creation  of  impediments, 
for  this  dispensation  is  nothing  else  but  the  recognition  of 
a  necessity,  which  may  be  contested  on  the  ground  of  better 
knowledge.  A  man  may  know  in  his  own  conscience  that 
a  dispensation  accorded  him  is  bad,  because  not  just  and 
necessary ;  an  authority  which  lawfully  controls  his  social 
actions  may  equally  decide  that  he  is  not  free  to  accept  the 
licence  allowed  him  by  an  authority  concurrent. 

It  will  be  observed  that  dispensation  has  here  been  spoken 
of  throughout  in  a  sense  including  far  more  than  the  specific 
graces  issued  to  individual  persons  under  that  name  within 
the  limits  of  various  legal  systems.  In  principle  it  seems 
right  to  group  together  all  the  modes  in  which  a  human 
authority  can  derogate  either  from  its  own  laws,  or  from 
the  obligation  of  other  laws,  and  even  of  divine  law.  The 
possibility  of  such  derogation  cannot  be  denied ;  its  legi- 
timacy may  sometimes  be  in  dispute  ;  it  is  in  all  cases  a 
dangerous  interference.  Frequent  dispensation  destroys 
the  credit  of  law,  and  is  tolerable  only  when  a  rigorous 
enforcement  would  for  a  time  provoke  worse  disorder. 
Complete  abrogation  of  a  law,  where  that  is  possible,  may 
sometimes  be  preferable.  Where  law  must  be  maintained— 
and  the  natural  law  cannot  be  annulled — the  plea  of  necessity 
justifies  any  relaxation ;  but  this  needs  the  most  careful 
watching,  lest  there  grow  out  of  easiness  a  general  habit 
of  disobedience. 

In  these  ways  human  law  may  reasonably  vary  from  the 
divine  law  of  marriage  ;  by  the  addition  of  supplementary 
obligations,  by  a  refusal  to  enforce  natural  obligations,  by 
creating  impediments  obstructive  or  diriment,  and  by  dis- 


NEED   OF  CAUTION  107 

pensing  in  case  of  necessity.  The  rights  of  human  society 
are  not  to  be  denied,  but  it  is  well  to  insist  on  a  cautious 
and  temperate  exercise  of  them.  To  multiply  either 
obligations  or  impediments  is  to  multiply  occasions  for 
dispensation ;  a  free  and  frequent  use  of  the  dispensing 
power  in  this  field  makes  for  ease  and  laxity  in  dispensing 
with  natural  law.  The  best  marriage  law  for  any  com- 
munity is  one  which  adds  as  little  as  possible  to  the  require- 
ments of  the  divine  law,  and  so  affords  the  least  possible 
foothold  for  dispensation. 


CHAPTER    IV 

Of  Marriage  in    Canon   Law 

THE  Christian  Church  began,  as  we  have  seen,  with  an 
effective  social  organization,  which  involved  the 
ordering  of  marriage,  as  of  other  incidents  of  social  life. 
The  contention  of  Rudolf  Sohm  has  been  sufficiently 
criticized  by  Harnack.  According  to  Sohm,  the  essence  of 
the  Gospel  lay  only  in  the  promulgation  of  an  ethic  and 
religious  ideal ;  the  Christian  life  was  an  effort  to  realize 
that  ideal,  which  inevitably  drew  the  disciples  into  social 
relations  and  gave  birth  to  the  Church ;  but  the  ministry 
and  government  of  the  Church  was  purely  prophetic  or 
charismatic ;  the  subsequent  development  of  a  legal  order 
and  of  an  authority  conveyed  by  succession  was  a  corrup- 
tion. There  is  an  element  of  truth  in  this  presentment. 
The  first  preaching  of  the  Gospel  was  in  this  kind,  but  as  a 
prophetic  movement  it  aimed  at  a  revivication  and  spirituali- 
zation  of  a  compact  social  order  already  existing  in  the 
Jewish  system,  and  the  whole  nation  with  the  Diaspora 
was  invited  to  participate.  In  that  system  prophetic 
and  legal  elements  were  combined ;  the  preaching  of  the 
Gospel  was  a  revival  of  prophecy,  taking  the  form  of  a  strenu- 
ous and  uncompromising  assertion  of  the  divine  purpose 
animating  the  natural  order  and  dominating  the  legal  order  ; 
but  both  the  natural  order  and  the  legal  order  were  assumed, 
and  their  continuance  was  postulated.  Eschatological 
fervour  might  diminish  the  importance  attributed  to  either, 

108 


PROPHET  AND   LEGISLATOR  109 

but  both  were  to  go  on  at  least  until  the  proximate  end  of 
the  dispensation.  The  legal  system  was  on  the  one  hand 
to  be  fulfilled  with  a  new  content,  and  on  the  other  hand 
it  was  to  be  reformed ;  it  was  not  to  be  destroyed.  "  I 
came  not  to  destroy,  but  to  fulfil,"  is  one  of  the  characteristic 
sayings  of  the  Gospel. 

It  is  true,  therefore,  that  Christianity  was  at  first  a 
charismatic  movement  of  reform  within  the  Jewish  system. 
But  it  soon  became  evident  that  the  old  prophetic  doctrine 
of  the  Remnant  was  once  more  to  be  exemplified.  As  soon 
as  the  disciples  began  to  call  themselves  the  Ecclesia  they 
showed  a  dawning  consciousness  of  this  fact,  nor  can  there 
be  much  doubt  that  this  use  of  the  word  had  already  been 
adumbrated  in  the  more  intimate  teaching  of  the  Lord.1 
As  this  consciousness  of  being  alone  the  faithful  remnant 
of  the  true  Israel  grew  upon  them,  they  seem  to  have  gradu- 
ally perfected  an  organization  carried  over  in  its  main  lines 
from  that  which  had  cast  them  out,  but  fulfilled  with  new 
ideas.  The  prophetic  and  the  legal  elements  were  con- 
trasted, as  always,  but  they  were  not  in  open  conflict.  St. 
Paul  insisted,  perhaps  more  strenuously  than  any  other 
teacher,  on  the  liberty  of  the  Spirit,  but  he  was  also  forward 
in  promulgating  canons  of  discipline  for  the  faithful.  The 
two  elements  were  combined  in  his  teaching,  with  no  care 
for  artistic  symmetry.  In  regard  to  marriage,  as  in  regard 
to  other  matters,  he  at  once  proclaimed  as  prophet  the 
Divine  Law,  and  as  legislator  gave  his  own  commandments. 


1  The  word  in  Matt.  xvi.  18,  xviii.  17,  even  apart  from  the  ques- 
tion of  the  language  used  by  our  Lord  and  of  its  equivalent  in 
Aramaic,  might  well  be  due  to  a  casting  back  of  later  ideas,  but 
Hort  is  certainly  right  when  he  says  that  "  the  application  of  the 
term  eK/cA^crta  by  the  Apostles  is  much  easier  to  understand  if  it 
was  founded  on  an  impressive  saying  of  our  Lord." — Tht  Christian 
Ecclesia,  p.  9. 


no  OF  MARRIAGE  IN  CANON  LAW 

That  was  the  beginning  of  the  Canon  Law  of  the  Church, 
and  its  development  has  followed  in  order.  It  combines 
divine  law  and  human  law,  distinguishing  them  clearly  in 
principle,  but  without  curiously  determining  the  line  of 
division.  Some  consequent  uncertainty  has  left  room  for 
disputation,  and  that  is  at  some  times  and  in  some  places 
insisted  on  as  divine  law  which  has  elsewhere  and  at  other 
times  been  treated  as  human  law  subject  to  absolute  dis- 
pensation or  abrogation. 

The  practical  importance  of  the  Canon  Law  of  marriage 
is  increased  by  the  fact  that  for  some  centuries  it  became 
not  merely  the  rule  of  conduct  for  Christians  as  such,  but 
also  the  almost  exclusive  regulation  of  marriage  and  of 
its  incidents  through  the  whole  extent  of  Christendom.  It 
was  thus  concerned  with  matters  of  secular  import,  such 
as  dowry  and  the  legitimacy  of  offspring.  This  state  of 
things  passed  away,  but  some  effects  survived.  The  laws 
of  marriage  in  modern  European  states,  however  much 
they  may  differ  from  the  law  of  the  Church,  are  derived  from 
it  and  retain  some  of  its  characteristics.  On  the  other 
hand,  the  Canon  Law  itself  was  affected  by  these  alien 
functions ;  it  was  the  care  of  marriage,  above  all  else, 
which  brought  upon  it  the  juridical  stiffness  and  complexity 
of  its  later  developments,  and  at  the  same  time  drove  it  to 
expedients  for  accommodation  to  the  supposed  necessities 
of  human  society.  If  the  Canon  law  were  essentially  what 
it  became  after  the  twelfth  century,  there  would  be  more 
force  in  the  strictures  of  Rudolf  Sohm. 

Yet  even  the  worst  of  these  developments  were  not  out 
of  keeping  with  its  origins.  It  issued  as  a  new  birth  from 
the  Judaic  law,  which  in  all  its  branches,  and  not  in  one 
only,  was  the  whole  of  law  for  those  living  under  it ;  and 
here  also  are  found  the  same  faults  of  legal  hardness  and 
moral  accommodation.  The  Gospel  was  a  protest  against 


CHRISTIANITY  AND   ROMAN   LAW  in 

both,  and  the  circumstances  of  the  formation  and  expansion 
of  the  Church  kept  them  for  some  time  at  a  distance.  Chris- 
tians had  no  organization  recognized  by  the  law  either  of 
the  Roman  Empire  or  of  any  of  its  component  parts.  The 
rules  of  Christian  conduct,  therefore,  could  not  have  legal 
effect  in  externals  ;  for  the  ordinary  purposes  of  civil  order, 
the  faithful  were  subject  to  various  laws  of  marriage,  from 
which  they  made  no  attempt  to  withdraw  themselves 
except  so  far  as  obedience  might  be  inconsistent  with  the 
moral  teaching  of  the  Gospel.  Some  martyrdoms  were 
due  to  this  difficulty,  but  as  a  rule  the  precepts  of  the  Church 
concerning  marriage  did  but  supplement  the  existing  law. 
When  Callistus  of  Rome  in  the  interest  of  morality  allowed 
what  was  illegal,  his  action  was  contested,  as  we  have  seen, 
even  by  some  Christians.1  When  Christianity  was  made 
a  lawful  religion  of  the  Empire,  and  still  more  when  it  became 
the  official  cult,  attempts  were  made,  with  less  success 
than  might  have  been  expected,  to  bring  the  law  into  har- 
mony with  the  teaching  and  practice  of  the  Church  ;  but 
even  the  legislation  of  Justinian,  for  all  his  professions  of 
Christian  principle,  was  far  from  achieving  this  end.  The 
Canon  Law  of  marriage  thus  remained  distinct  from  the 
imperial  law,  which  it  eventually  ousted,  the  entire  control 
of  the  relations  of  husband  and  wife  passing  into  the  hands 
of  the  hierarchy.  In  the  East,  this  change  was  not  effected 
without  serious  modifications  of  Christian  practice ;  in  the 
West,  the  rules  of  the  Church  remained  intact  precisely 
because  their  acceptance  as  formal  law  was  longer  delayed  ; 
when  they  finally  prevailed  over  the  laws  alike  of  the 
Empire  and  of  the  new  Germanic  Kingdoms,  the  hierarchy 
under  the  leadership  of  the  Pope  had  won  so  dominant  a 
position  that  they  could  be  enforced  in  all  their  rigour, 
and  whatever  laxity  ensued  came  only  from  internal  causes. 

1  Supra,  p.  73. 


H2  OF  MARRIAGE  IN  CANON  LAW 

I  shall  briefly  trace  the  origin  and  progress  of  the  Canon 
Law  of  marriage,  endeavouring  to  distinguish  those  parts 
of  it  which  are  concerned  with  the  maintenance  of  the 
divine  law  and  of  Christian  standards  of  conduct  from  those 
in  which  it  has  played  the  same  part  as  any  other  legal 
system,  thus  preparing  the  way  for  the  jurisprudence  of 
the  modern  State. 

Existing  within  the  Jewish  nation,  from  which  it  was 
slowly  detached,  and  carrying  on  expressly  the  religious 
traditions  of  that  nation,  the  Church  was  concerned  with 
marriage  in  the  first  instance  as  it  stood  in  the  Jewish  law. 
Of  this  there  were  two  clearly  marked  divisions  :  the  written 
law,  known  as  Mosaic,  and  the  traditional  judgments  of  the 
Soferim,  which  were  afterwards  collected  in  the  Talmud 
and  digested  by  the  Rabbinical  schools.  The  Soferim, 
however,  were  as  much  concerned  with  the  interpretation 
and  with  the  casuistic  application  of  the  Mosaic  statutes 
as  with  their  own  traditions,  and  the  divisions  of  the  law 
were  thus  linked  in  one. 

The  contractual  nature  of  marriage  was  fully  recognized 
in  this  law,  though  it  contained  many  relics  of  an  economy 
in  which  the  wife  was  hardly  distinguished  from  a  slave, 
but  it  was  no  less  clearly  understood  that  a  natural  and 
sacred  relation  between  the  parties  was  set  up  by  the  fulfil- 
ment of  the  contract.  "  The  act  of  contracting  marriage," 
says  a  competent  writer,  "  is  termed  Kiddushin,  since  by 
this  act  the  wife  is  set  apart  for  her  husband,  and  rendered 
inviolable  and  inapproachable  in  respect  of  any  other  man."  x 
But  the  contract  was  not  equal,  since  polygamy  was  allowed 
on  the  man's  side ;  it  seems  to  have  been  little  practised 
after  the  Exile,  and  was  perhaps  almost  unknown  at  the 
time  of  the  Gospel,  but  it  remained  lawful  until  formally 

1  Mielziner,  The  Jewish  Law  of  Marriagt  and  Divorce,  p.  27. 


THE   JEWISH    LAW  113 

forbidden  by  the  Rabbinical  Synod  of  Worms  under  Gershom 
ben  Juda  in  the  eleventh  century.  Moreover,  the  state  of 
marriage  was  held  to  be  entirely  dissoluble  by  a  guarded 
act  of  the  husband  expressed  in  a  bill  of  divorcement. 

The  mode  of  contracting  was  not  provided  for  in  the 
Mosaic  code,  but  was  prescribed  with  some  fulness  in  Rabbi- 
nical law.  A  mere  verbal  consent  was  not  held  sufficient ; 
there  must  be  an  act,  attended  with  considerable  publicity. 
The  act,  indeed,  was  twofold ;  for  espousals  and  nuptials 
were  both  required,  with  an  interval  of  not  less  than  thirty 
days  in  the  case  of  a  widow,  of  a  whole  year  in  the  case 
of  a  virgin.1  The  espousal  was  not  merely  a  promise  of 
marriage,  or  consent  de  futuro  ;  it  was  a  real  initiation  of 
marriage,  involved  the  unfaithful  in  the  guilt  of  adultery, 
and  could  be  dissolved  only  by  death  or  divorce.  The 
formality  required  was  either  a  gift  of  money,  with  the 
words,  "  Be  thou  consecrated  to  me,"  or  a  written  instru- 
ment (Shetar)  conceived  in  like  terms.2  The  presence  of 
witnesses  was  essential,  and  according  to  the  ritual  law  the 
betrothal  was  to  be  blessed  with  prayer.  Of  the  nuptials 
which  followed,  the  essential  act  was  the  conveyance  of 
the  bride  from  her  own  home  to  that  of  the  bridegroom,  or 
to  a  place  representing  his  home,  where  she  was  received 
in  the  presence  of  at  least  ten  neighbours,  and  was  blessed 
either  by  the  bridegroom  himself  or  by  one  of  the  witnesses. 
The  blessings,  however,  do  not  seem  to  have  been  regarded 
as  essential  for  a  valid  union. 

Marriage  was  guarded  by  impediments  obstructive  or 
diriment,  some  of  which  were  Mosaic,  some  Rabbinical. 
Impediments  of  consanguinity  and  affinity  are  found  in 
both  divisions.  Those  actually  mentioned  in  the  Mosaic 
books  were  held  to  make  an  union  incestuous,  and  void  from 

1  The  bearing  of  this  upon  Matt.  i.  18  and  Luke  ii.  27  is  obvious. 
1  Cf.  Tobit  vii.  14. 

M.C.S.  I 


H4  OF  MARRIAGE  IN  CANON  LAW 

the  beginning.  Those  added  by  the  Soferim,  whether  by 
logical  inference  or  for  the  purpose  of  safeguarding  the  law, 
were  less  peremptory  in  effect ;  espousals  contracted  in 
spite  of  them  might  be  cancelled,  but  a  consummated 
marriage  must  be  dissolved  by  a  bill  of  divorcement.  The 
mode  of  reckoning  kinship  was  not  settled  until  a  later 
period.  "  There  was  no  bar,"  it  has  been  said,  "  to  union 
with  close  relatives  on  the  father's  side,  and  even  down  to 
the  Babylonian  exile  such  unions  appear  to  have  been 
common."  x  It  is  noteworthy  that,  while  aunt  and  nephew 
were  forbidden  to  intermarry,  on  the  ground  that  an  almost 
maternal  kinswoman  could  not  render  wifely  obedience, 
the  marriage  of  uncle  and  niece  was  even  commended.2 
The  curious  law  of  the  levirate  broke  in  upon  the  impedi- 
ment of  affinity  for  the  express  purpose  of  preserving  in- 
heritances. It  died  out ;  the  originally  dishonourable 
procedure  of  Halizah,  by  which  the  obligation  was  evaded,3 
came  into  general  use,  for  it  was  considered  doubtful,  says 
Mielziner,  "  whether  he  who  marries  his  brother's  widow 
with  other  than  the  purest  motives  is  not  actually  com- 
mitting incest."  4 

Of  other  impediments,  the  prohibition  of  intermarriage 
with  Gentiles  was  most  important.  In  the  oldest  law  the 
Seven  Nations  of  Canaan  seem  to  have  been  excluded  ; 
Ezra  and  Nehemiah  extended  the  prohibition  to  all  neigh- 
bouring tribes,  the  Maccabean  priesthood  made  it  applicable 
to  the  whole  Gentile  world.  Espousals  and  nuptials  were 
forbidden  on  Sabbaths,  on  festivals,  and  for  several  days 
following  the  Passover,  but  a  breach  of  this  rule  did  not 
invaJdate  marriage.  It  is  remarkable  that  impotence,  if 
due  to  natural  causes,  was  no  impediment,  though  the 

1  Jewish  Encyclopedia,  viii.  336. 

*  Mielziner,  p.  39.  3  Ruth  iv.  7  ;    Deut.  xxv.  7-10- 

*  Op.  cit.  p.  57. 


DIVORCE  IN   JEWISH  LAW  115 

sterility  of  a  wife  after  ten  years  was  a  ground  for  divorce. 
Neither  did  the  lack  of  free  consent  on  the  man's  part 
invalidate  the  marriage  contract,  since  he  could  have  his 
remedy  in  divorce  ;  but  a  marriage  might  be  set  aside  if  the 
bride  could  be  shown  to  have  acted  under  compulsion. 
In  spite  of  this,  a  father  could  lawfully  give  his  daughter 
in  marriage  even  before  the  age  of  puberty,  and  the  practice 
seems  to  have  been  not  uncommon.1 

Divorce  was  a  privilege  of  the  husband.  According  to 
the  Mosaic  rule,  he  could  dismiss  a  wife  on  the  ground  of 
dislike,  but  only  if  he  were  able  to  allege  some  "  unclean- 
ness,"  or  grave  unseemliness,  as  the  cause  of  disfavour.2 
To  prevent  hasty  action  the  law  required  him  to  give  her 
a  Bill  of  Divorcement,  which  was  her  full  discharge,  enabling 
her  to  marry  another  man.  The  husband  himself,  in  view 
of  the  permission  of  polygamy,  required  no  such  discharge. 
The  schools  of  Shammai  and  Hillel  hotly  disputed  the 
meaning  of  the  uncleanness  which  would  justify  divorce. 
Shammai  admitted  only  the  case  of  moral  delinquency  or 
unchaste  demeanour ;  Hillel  allowed  the  husband  to  act 
on  the  ground  of  anything  offensive  or  displeasing  to  himself. 
Morally,  the  opinion  of  Shammai  secured  the  suffrages  of 
pious  Jews  ;  but  legally,  the  judgment  of  Hillel  prevailed. 

The  law,  whether  written  or  traditional,  was  theocratic. 
This  was  both  its  strength  and  its  weakness.  On  whatever 
ancient  customs  and  institutions  it  had  been  founded,  all 
was  brought  to  the  test  of  high  prophetic  inspiration.  The 
wisdom  and  the  prejudices  accumulated  during  centuries 
of  administration  were  thus  purified,  and  reduced  to  an 
order  in  which  the  faith  of  Israel  could  see  nothing  less  than 
perfection.  God  spoke  in  the  law.  "  The  Lord  said  unto 


1  There  is  a  reflection  of  'it  in  i  Cor.  vii.  36. 

2  Deut.  xxiv.  1-2. 


n6  OF  MARRIAGE  IN  CANON  LAW 

Moses/'  was  the  formula  by  which  even  trivial  regulations 
were  introduced.  The  judgments  of  the  Soferim  them- 
selves were  not  so  much  decisions  newly  made  as  determina- 
tions of  the  Divine  Will,  and  the  most  transitory  provisions 
for  the  ordering  of  human  life  were  regarded  in  specie 
aeternitatis.  Political  expedients  were  confounded  with 
moral  principles ;  wise  precautions  against  the  absorption 
of  the  People  of  God  into  surrounding  heathendom  were 
translated  into  fundamental  laws  of  marriage,  and,  worst  of 
all,  accommodations  to  human  imperfection  were  treated 
as  express  commandments  of  God.  The  preaching  of  the 
Gospel  was  inevitably  a  challenge  addressed  to  this  hetero- 
geneous mass  of  legislation,  as  was  shown  in  our  Lord's 
treatment  of  the  Sabbath,  and  what  He  did  there  He  did 
also  in  regard  to  the  law  of  marriage.  He  did  not  deny 
the  authority  of  the  constituted  judges  of  the  people ; 
they  sat  in  Moses'  seat,  and  their  judgments  were  to  be 
respected ;  but  the  whole  system  was  to  be  reformed  by  a 
reference  to  eternal  laws.  Confronted  with  the  teaching 
of  Hillel,  our  Lord  condemned  as  lax  even  the  stricter 
opinion  of  Shammai,  and  this  by  virtue  of  a  reference  to 
the  original  and  natural  institution  of  marriage.1  In 
setting  aside  the  Deuteronomic  law  of  divorce  as  a  mere 
accommodation  to  the  hardness  of  men's  hearts,  He  drew 
a  definite  distinction  between  the  Divine  Law  and  the 
Mosaic  Law,  referring  the  one  to  creative  Will  as  seen  in  the 
order  of  nature,  and  reducing  the  other  to  its  proper  place 
among  the  authoritative  ordinances  of  human  society. 
So  reduced,  and  reformed  in  accordance  with  the  preaching 
of  the  Gospel  and  with  the  intimations  of  God's  Holy  Spirit, 
the  Jewish  law  passed  into  the  possession  of  the  Christian 
Church. 

Some  changes  are  obvious.     Divorce,  if  allowed  at  all, 
1  Matt.  xix.  3-9,  v.  31-2,  and  parallel  passages. 


THE   ORIGINAL   CHRISTIAN   LAW          117 

was  severely  restrained  ;  marriage  seems  to  have  been 
strictly  forbidden  to  the  separated  parties  while  both  were 
living,  the  natural  indissolubility  of  the  bond  being  thus 
rather  implied  than  denned  ;  the  prohibition  of  marriage 
with  aliens  became  an  injunction  not  to  intermarry  with 
unbelievers.  The  only  clear  information  that  we  have 
on  these  matters  in  the  first  age  of  Christianity  is  contained 
in  some  brief  passages  of  the  canonical  Gospels,  in  one 
important  chapter  of  St.  Paul's  first  Epistle  to  the  Corin- 
thians, and  in  some  casual  remarks  elsewhere  made  by  the 
Apostle.  It  is  impossible  to  construct  a  complete  scheme 
of  what  was  required  or  disallowed  in  Christians.  Indeed, 
it  may  be  inaccurate  to  say  that  any  such  scheme  existed. 
Expositions  of  the  Divine  Law  were  doubtless  given  as 
needed,  and  questions  about  what  was  seemly  were  answered 
by  the  Apostles,  jointly  or  severally,  as  they  were  asked. 
We  see  St.  Paul  so  answering  the  Corinthians,  and  we  may 
infer  that  the  practice  was  general.  It  is  possible  that  the 
express  prohibition  of  fornication  by  the  Apostles  and 
Presbyters  at  Jerusalem  1  was  a  decree  requiring  married 
men  to  abstain  from  that  intercourse  with  unmarried 
women  which  the  Greek  conscience  freely  allowed,  thus 
making  the  offence  of  adultery  identical  in  husband  and 
wife.  What  stands  out  perfectly  clear  is  the  fact  that 
rules  were  thus  made ;  that  is  to  say,  that  there  was  an 
incipient  Canon  Law  of  marriage,  enforced  by  the  discipline 
of  the  Church.  From  the  age  immediately  succeeding  that 
of  the  Apostles  there  survives  one  clear  indication  of  such 
disciplinary  control.  "It  is  proper,"  writes  St.  Ignatius, 
"  for  those  intermarrying  to  effect  their  union  under  the 
direction  of  the  bishop,  that  their  marriage  may  be  after 
the  Lord  and  not  after  their  own  lust."  a  Nothing  could 

1  Acts  xv.  29. 

*  Ad  Poly  car  pum,  -j;     ?r^eVe{    §€  TOIS  ya^.ovo't   Kat  rats 


n8  OF   MARRIAGE   IN   CANON   LAW 

be  less  like  the  imposing  structure  of  the  later  ecclesiastical 
law  of  marriage  than  this  personal  and  pastoral  control,  and 
yet  all  is  potentially  contained  herein.  The  rule  of  Christian 
conduct  is  customary,  though  some  precepts  are  already 
written,  and  the  bishop  is  supposed  to  have  it  in  pectore  ; 
the  development  of  a  code  is  inevitable. 

But  the  Christian  rule  did  not  purport  to  set  aside  public 
law,  or  to  be  a  substitute  for  it.  The  apologists  were  clear 
on  this  head.  They  were  constantly  repelling  the  vague 
accusations  of  immorality  to  which  Christians  were  subject. 
Athenagoras  acknowledged  the  observance  of  a  special  law, 
saying  that  a  Christian  recognized  as  wife  only  such  an  one 
as  he  had  married  "  in  accordance  with  the  laws  enacted 
by  ourselves,"  but  in  the  Epistle  to  Diognetus  it  is  emphati- 
cally alleged  that  Christians  domiciled  in  Greek  or  barbarian 
communities  adhered  to  the  institutions  of  their  neighbours, 
as  in  other  matters  of  daily  life,  so  also  in  respect  of  marriage. 
That  the  control  of  marriage  by  the  Church  was  properly 
an  exercise  of  penitential  discipline  is  clear  from  the  refer- 
ences to  it  in  Hermas.1 

The  practice  of  dispensation,  however,  was  not  long 
delayed,  being  applied  alike  to  the  Divine  Law,  to  ecclesias- 
tical rules,  and  to  the  prescriptions  of  civil  law.  Origen, 
though  condemning  such  laxity,  recognizes  the  fact  that 
some  bishops  in  his  time  would  allow  a  divorced  husband 
or  wife  to  marry  while  the  separated  party  was  still  living  ; 
not  entirely  without  cause,  he  confesses,  in  spite  of  the 
express  prohibition  of  Scripture,  if  regard  be  paid  to  the 


yvw/x^s  TOV  CTrtcTKOTrov  Tyv  evoxTtv  7roi€t(T0ai,  iva  6  ycx/xos  $  Kara 
Kal  pfj  KO.T  €7ri0v/x,iav.  There  is  probably  no  reference  to 
i  Cor.  vii.  39,  Kara  Kvpiov  being  wider  than  Iv  KV/DIU>,  and  covering 
obedience  to  all  Christian  teaching. 

1  Athenag.  :    Leg.  pro  Christianas,  33  ;    77  v  ^yaycro  Kara  TOVS  v<J> 
uwv  T€0eiueVovs  vo/xovs.     Epist.  ad  Diog.,  5.     Hermas,  Mand,  iv. 


THE  ORIGINAL  CHRISTIAN   LAW  119 

infirmity  of  men  not  endowed  with  the  grace  of  continence, 
and  the  worse  evils  that  a  strict  observance  of  the  law  might 
engender.1  The  principle  underlying  the  practice  of  dis- 
pensation is  here  laid  down  with  the  utmost  precision,  and 
the  existing  practice  of  the  Eastern  Church  is  anticipated. 
Dispensation  from  ecclesiastical  rule  is  obscurely  indicated 
by  Tertullian,  with  the  expression  of  distaste  that  might 
be  expected  of  his  unbending  mind,  in  the  case  of  some 
Christian  women  who  had  married  unbelievers  ;  he  does 
not  know  whether  to  put  this  down  to  their  own  wayward- 
ness or  to  the  double  dealing  of  their  advisers.2  Dispensa- 
tion from  the  requirements  of  civil  law,  enabling  Christians 
to  disregard  them  with  a  good  conscience,  is  found  in  the 
debated  action  of  Callistus,  who  allowed  Christian  women 
of  high  rank  to  intermarry  with  slaves.3  It  is  significant 
that  objection  was  taken  to  all  such  dispensations.  They 
mark  the  gradual  change  of  the  moral  teaching  of  the  Church 
into  a  system  of  law,  which  must  take  account  of  excep- 
tions as  well  as  of  principles.  There  is  indeed,  even  in  the 
canons  of  certain  councils  held  in  the  early  part  of  the  fourth 
century,  a  noteworthy  tenderness  in  dealing  with  some 
breaches  of  the  Christian  law.  The  ninth  canon  of  Illiberris 
allows  a  woman  who  has  left  an  adulterous  husband,  and 
married  another,  to  be  restored  to  Communion  after  the 
death  of  her  true  husband,  or  even  sooner  in  case  of  necessity, 
apparently  without  requiring  her  to  break  with  her  new 
partner.  The  sixteenth  canon  imposes  a  penance  of  five 

1  Orig.  Comment,  in  Matt.,  torn.  xiv.  23. 

2  Tertull.  Ad  Uxorem.  ii.  2.     "  Miratus  aut  ipsarum  petulantiam 
aut    consiliariorum    praevaricationen."      The     word     praevaricatio 
seems  to  be  used  in  its  proper  forensic  sense,  in  which  case  the  harsh 
and  impetuous  writer  brings  against  the  consiliarii,  who  can  hardly 
be  other  than  the  ecclesiastical  authorities,  the  odious  charge  of 
acting  in  collusion  with  the  unbelieving  party. 

3  Supra,  p.  73. 


120  OF   MARRIAGE   IN   CANON   LAW 

years  on  those  giving  a  daughter  in  marriage  to  a  Jew  or 
heretic,  but  says  nothing  about  separation  of  the  parties. 
In  a  like  case  the  eleventh  canon  of  Aries  imposes  on  women 
so  married  only  a  brief  exclusion  from  Communion,  "  ut 
aliquanto  tempore  a  communione  separentur."  The  tenth 
canon  of  the  same  council  is  even  more  remarkable.  "  De 
his  qui  coniuges  suas  in  adulterio  deprehendunt,"  it  says, 
"  et  eidem  sunt  adulescentes  fideles  et  prohibentur  nubere, 
placuit  ut  inquantum  possit  consilium  eis  detur,  ne  viven- 
tibus  uxoribus  suis  licet  adulteris  alias  accipiant."  It  is 
recorded  that  a  man  who  has  detected  his  wife  in  adultery 
is  forbidden  by  the  Church  to  use  the  liberty  of  divorce 
and  remarriage  allowed  him  by  the  civil  law,  but  no  censure 
or  penance  is  imposed  on  one  who,  under  the  excuse  of 
youth,  violates  this  prohibition ;  he  is  only  to  be  advised  in 
the  strongest  possible  terms  to  obey.  This  interpretation 
can  be  escaped  only  by  a  rendering  which  would  refer  the 
words  alias  accipiant  to  a  concubine  and  not  to  a  legal  wife  ; 
it  will  then  follow  that  the  council,  while  absolutely  for- 
bidding marriage  to  the  divorced,  reluctantly  tolerates  con- 
cubinage. Hefele,  not  observing  the  possibility  of  this 
rendering,  sees  in  the  canon  a  concession  to  the  standard  of 
morality  set  up  by  the  civil  law. 

When  the  Empire  became  Christian,  the  civil  law  of  mar- 
riage was  gradually  modified  in  a  Christian  sense.  The 
process  was  slow,  and  was  never  completed,  but  there  was 
in  the  Church  an  inevitable  tendency  to  acquiesce,  and  still 
further  to  abate  the  severity  both  of  witness  to  the  natural 
law  as  clarified  by  revelation,  and  of  insistence  on  the  sacred 
canons.  It  must  not  be  supposed,  however,  that  the  Chris- 
tian rule  was  even  approximately  identified  with  the  im- 
perial law.  Failure  to  observe  the  distinction  vitiates  much 
of  the  industrious  learning  which  Bingham  devoted  to  this 
subject ;  he  constantly  confuses  the  legislation  of  the  Theo- 


THE  CHRISTIAN   EMPIRE  121 

dosian  emperors  with  the  contemporary  canons  of  the  Church. 
The  real  divergence  was  sufficiently  recognized  ;  conscious- 
ness of  it  appears  in  a  canon  of  unknown  source  and  date, 
erroneously  ascribed  to  the  Council  held  at  Mileve  in  the 
year  416,  which  demanded  an  imperial  law  in  support  of 
the  rule  of  the  Church  forbidding  marriage  after  divorce.1 
The  burden  of  sustaining  this  rule  in  face  of  an  unsympa- 
thetic law,  nominally  Christian,  was  evidently  oppressive. 
Some  years  earlier  the  First  Council  of  Toledo  regulated 
the  standing  of  a  concubine,  but  only  as  a  matter  of  Chris- 
tian discipline,  and  on  the  same  ground  required  a  conse- 
crated virgin  who  had  contracted  marriage  to  separate  from 
her  husband,  without  calling  in  question  the  validity  of  the 
marriage.  But  about  the  same  time  we  find  Innocent  of 
Rome  going  a  step  farther.  In  a  decretal  letter  he  claimed 
the  right  to  determine  a  case  of  marriage,  in  which  grave 
injustice  would  be  done  "  nisi  sancta  religionis  statuta  pro- 
viderent."  A  wife  having  been  carried  off  by  invading 
barbarians,  her  husband  married  another,  as  allowed  by 
law  ;  on  her  return  from  captivity  the  Pope  ruled  that 
her  husband  was  still  bound  to  her,  and  must  separate  from 
the  other  partner  whom  he  had  taken.2  To  do  this  was  to 
set  the  authority  of  the  Church  in  direct  conflict  with  the 
Civil  Law,  and  that  not  merely  by  way  of  dispensation,  as  in 
the  case  of  Callistus.  Here  is  an  order  to  do  a  specific  thing. 
These  instances,  chosen  out  of  many,  show  three  distinct 
lines  of  action  in  the  Church  :  the  restriction  of  ecclesiastical 
rule  to  a  purely  spiritual  discipline  ;  an  attempt  to  bring 
the  imperial  law  into  agreement  with  Christian  teaching  ;  * 

1  Cone.  Milev,  can.  17.  "In  qua  causa  legem  imperialem  pe- 
tendam  promulgari." 

J  Innocent  I.  Ep.  ix.  ad  Probum. 

3  In  the  legislation  of  Constantius  and  Theodosius  the  younger 
are  instances  of  success  in  this  line  introducing  into  the  Civil  Law 


122  OF  MARRIAGE  IN  CANON  LAW 

and  a  bolder  attempt  to  regulate  independently  incidents 
of  social  order.  All  three  activities  have  continued  or  have 
recurred  in  the  history  of  the  Church  down  to  the  present 
day.  The  decretal  of  Innocent  I.  points  implicitly  to  the 
whole  ecclesiastical  jurisdiction  concerning  marriage,  exer- 
cised throughout  the  West  during  the  Middle  Ages,  and 
still  exercised  in  some  parts  of  the  East ;  the  attempt  to 
mould  the  civil  law  in  accordance  with  Christian  teaching 
has  been  resumed  in  modern  England,  while  in  other  coun- 
tries the  Church  has  in  recent  times  accepted  the  function 
of  a  purely  internal  and  spiritual  control  of  its  own  members. 
Our  present  task  is  to  examine  the  first  of  these  develop- 
ments. 

For  the  orthodox  Churches  of  the  East,  the  Quinisext 
Council  in  Trullo,  A.D.,  692,  is  an  important  turning  point, 
as  in  other  matters  of  discipline,  so  also  in  regard  to  mar- 
riage. It  was  now  definitely  ruled,  contrary  to  a  wide- 
spread practice  of  previous  ages,  that  priests  and  deacons 
should  not  be  debarred  from  the  use  of  marriage,  though 
they  were  forbidden  to  marry  after  ordination ;  and  deposi- 
tion was  threatened,  with  a  special  reference  to  the  Roman 
Church,  in  case  any  bishop  should  exact  a  promise  of  absten- 
tion. Bishops  themselves,  however,  were  forbidden  to 
cohabit  with  their  wives,  who  were  required  to  retire  to  a 
monastery  at  some  distance.  Censures  were  provided  for 
a  priest  who  should  bless  unlawful  nuptials,  and  the  pre- 
tended union  was  to  be  dissolved.  A  monk  attempting 
marriage  was  to  be  treated  as  a  fornicator.  A  rule  of  spirit- 
ual kinship  was  established,  by  which  a  sponsor  at  baptism 
was  forbidden  to  marry  the  mother  of  his  god-child,  the 
marriage  being  treated  as  void.  In  explicit  extension  of 


the  impediment  of  collateral  affinity.     Cod.  Theod.,  iii.  12,  Deincestis 
nuptiis. 


EASTERN  CANON   LAW  123 

rules  laid  down  by  St.  Basil  the  Great,  marriages  of  uncle 
and  niece,  or  of  father  and  son  with  two  sisters,  and  con- 
versely, were  made  unlawful,  separation  being  enjoined. 
The  prohibition  of  marriage  with  unbelievers  was  extended 
to  the  case  of  heretics,  but  the  marriage  of  two  unbelievers 
or  of  two  heretics  was  to  stand  good  after  the  conversion 
of  one  party,  on  the  ground  of  St.  Paul's  saying  that  the 
unbelieving  husband  is  sanctified  by  the  wife.  Attempted 
marriage  after  divorce  was  declared  to  be  adultery,  as  also 
was  marriage  contracted  after  a  long  absence  of  husband  or 
wife ;  in  this  case  actual  proof  of  death  was  required  to 
make  marriage  lawful,  but  some  freedom  was  allowed  to 
the  wife  of  a  soldier,  whose  death  might  be  presumed  ;  should 
he  return  after  her  marriage  to  another  man,  he  was  left 
free  to  resume  cohabitation  with  her  or  not,  at  his  own  plea- 
sure, and  all  the  parties  were  to  be  held  free  from  blame. 
Espousals,  no  less  than  a  completed  marriage,  were  to  bind 
under  peril  of  adultery,  and  a  precontract  was  thus  made  a 
diriment  impediment  of  marriage. 

The  Roman  Church  rejected  this  council,  and  conse- 
quently, though  several  of  its  canons  found  their  way  into 
Western  collections,  its  trenchant  legislation  about  marriage 
became  operative  only  in  the  East.  The  divergence  of  the 
two  parts  of  the  Church  in  matters  of  discipline  now  became 
definite.  I  shall  briefly  note  the  development  of  the  law 
of  marriage  in  the  East,  and  then  return  to  the  more  com- 
plicated fortunes  of  the  Western  Church. 

The  legislation  of  Justinian  had  shown  how  far  Christian 
doctrine  could  affect  the  law  of  the  Empire,  and  left  this 
sufficiently  at  variance  with  the  canons  of  the  Church.  There 
were,  therefore,  two  laws  of  marriage,  perfectly  distinct, 
and  sometimes  contradictory.  There  was  no  confusion  of 
Church  and  State,  though  there  was  a  close  alliance,  the 
Church  being  on  the  whole  subservient.  After  the  Quini- 


124  OF   MARRIAGE   IN   CANON   LAW 

sext  Council,  however,  the  canonical  rules  about  marriage 
were  enforced  with  considerable  strictness,  and  gradually 
became  predominant,  as  regulating  social  action,  over  the 
Civil  Law.  In  the  year  893  the  Emperor  Leo  the  Philoso- 
pher, by  his  eighty-third  Novel,  enacted  that  a  marriage 
blessed  by  the  Church  should  alone  rank  as  legitimate.  In 
1306  Andronicus  the  Elder,  in  conjunction  with  the  Patri- 
arch Athanasius,  forbade  any  contracting  of  marriage  with- 
out the  knowledge  and  intervention  of  the  parish  priest.1 
The  Empire  was  now  reduced  within  narrow  bounds,  but 
the  influence  of  the  Patriarch  extended  far,  and  in  this  way 
was  established  an  ecclesiastical  control  of  marriage  which 
survived  the  fall  of  Constantinople,  to  become  the  fixed 
rule  of  the  Ottoman  Empire.  Ecclesiastical  marriage  was 
henceforth  the  only  kind  of  marriage  recognized  as  valid 
by  the  State. 

The  Canon  Law  thus  administered  was  codified  at  an 
early  date.  In  the  Nomocanon  of  John  the  Scholastic, 
Patriarch  of  Constantinople  from  the  year  565,  all  the  known 
canons  of  Councils,  with  sentences  of  the  Fathers  then  gener- 
ally taken  as  binding,  were  digested  under  fifty  titles, 
Eastern  Christendom  being  thus  supplied  with  a  systematic 
treatise  of  a  kind  for  which  the  Westerns  had  yet  to  wait 
many  centuries.  Supplemented  by  new  conciliar  defini- 
tions, it  was  at  length  superseded  in  the  year  883  by  a  new 
work  in  the  same  style,  which  became  the  definitive  law- 
book  of  the  Eastern  Church.  The  text  was  for  some  time 
treated  as  sufficient,  but  in  the  course  of  the  twelfth  century 
it  was  enriched  with  elaborate  commentaries  by  Zonaras, 
Alexius,  Aristenus,  and  Balsamon.  In  the  thirteenth 
century,  Arsenius  of  Mount  Athos,  afterwards  Patriarch  of 
Constantinople,  set  out  the  whole  legislation  of  the  Church 

1  Milasch,  Kirchenrtcht,  p.  581. 


EASTERN  CANON   LAW  125 

afresh  in  a  Synopsis  of  a  hundred  and  forty-one  chapters. 
About  the  same  time  was  prepared  a  code,  the  Krmcaja 
Kniga,  for  the  Slavonic  Churches,  which  held  an  unchal- 
lenged position  until  Peter  the  Great  forced  on  the  Russian 
hierarchy  some  new  legislation,  affecting  marriage  as  well 
as  other  incidents  of  the  Christian  life,  in  which  innovation 
passed  for  reform. 

The  most  striking  feature  of  this  codified  system  is  the 
refusal  to  recognize  as  valid  any  marriage  that  is  not  con- 
tracted in  complete  accordance  with  law.  Natural  mar- 
riage by  simple  consent  is  not  merely  ignored,  but  strictly 
forbidden  under  pain  of  ecclesiastical  censure  ;  a  clandestine 
marriage  is  void.  It  is  not  any  measure  of  publicity  that 
will  suffice  ;  the  requirements  are  laid  down  with  precision. 
The  marriage  must  be  blessed  by  the  parish  priest  in  the 
presence  of  two  witnesses  ;  should  the  parties  belong  to 
different  parishes,  it  is  the  priest  of  the  bride's  parish  who 
must  act,  but  he  may  delegate  this  function  to  another 
priest.1 

Some  minor  requirements  of  the  law  alone  may  be  ne- 
glected without  voiding  the  marriage.  The  Eastern  Church 
has  always  been  reluctant  to  distinguish  between  the  legiti- 
macy and  the  validity  of  a  sacrament,  but  the  conception  of 
obstructive  impediments  (Ka^Kv^ara  aTroyopevn/cd),  as  dis- 
tinct from  diriment  (avarp€7nLKd),  crept  in  when  the  legal 
control  of  marriage  fell  to  the  ecclesiastical  authorities.  It 
should  be  observed,  however,  that  even  obstructive  impedi- 
ments are  held  to  suspend  the  effect  of  marriage  until  they 
be  removed  by  dispensation,  which  can  be  obtained  from 
any  bishop,  and  which  appears  to  have  the  effect  of  sanatio 
in  radice.  This  strictness  makes  it  the  less  remarkable  that 
force  or  fear  inducing  marriage  is  treated  as  an  obstructive 
impediment  only,  a  fact  which  may  be  due  to  the  stress 
1  Milasch,  pp.  582,  595. 


126  OF  MARRIAGE  IN  CANON  LAW 

laid  on  the  nuptial  benediction  as  compared  with  the  con- 
sent of  the  parties. 

Consanguinity  within  the  seventh  degree  is  a  diriment 
impediment  in  the  Churches  of  the  Patriarchates,  but  in 
the  Kingdom  of  Greece  it  is  reckoned  only  to  the  sixth  de- 
gree, in  Russia  to  the  fourth.  Affinity  is  reckoned  strictly 
to  the  fifth  degree,  and  partially  to  the  seventh,  the  exten- 
sions made  by  the  Quinisext  being  still  in  force,  but  only 
to  the  third  degree  ;  the  impediment  of  spiritual  kinship, 
after  undergoing  some  enlargement,  has  been  brought  back 
to  the  form  in  which  it  was  recognized  by  the  same  council. 
Other  diriment  impediments  are  lack  of  mental  capacity, 
impotence,  the  lack  of  parental  consent  where  required,  a 
religious  vow  of  continence,  the  pregnancy  of  the  bride  under 
certain  conditions,  existing  marriage,  and  a  third  widowhood. 
Marriage  can  be  contracted  in  a  first  or  second  widowhood, 
but  the  parties  are  put  to  penance. 

Diriment  impediments  can  be  dispensed  with  by  a  General 
Council  only,  or  by  an  equivalent  authority,  the  Patriarchal 
Council  at  Constantinople,  for  example,  or  the  Holy  Govern- 
ing Synod  of  Russia.  There  seem  to  be  no  exceptions,  and 
impediments  are  not  distinguished  as  of  divine  or  human 
law.  It  follows  that  all  dispensations  alike  must  be  regarded 
as  contingent,  and  conceded  on  the  ground  of  necessity. 
Even  the  impediment  of  existing  marriage  is  not  absolutely 
irremovable,  as  is  seen  from  the  practice  of  the  Church  in 
case  of  divorce.  Divorce  itself,  as  we  have  seen,  is  in  the 
nature  of  a  dispensation  from  the  natural  law  requiring 
community  of  life  in  the  married,  and  should  be  allowed 
only  for  the  gravest  reasons  of  necessity.  The  Eastern 
Churches  were  long  disposed,  as  may  be  seen  from  the  canons, 
so-called,  of  St.  Basil,  to  follow  the  Jewish  law,  forbidding 
a  man  to  continue  marital  cohabitation  with  an  adulterous 
wife,  but  in  the  fourth  century  Christians  had  not  all  learnt 


DIVORCE  IN  THE  EASTERN  CHURCH      127 

to  treat  as  adultery  the  sin  of  a  husband  with  an  unmarried 
woman,  and  his  wife  was  not  even  allowed  to  leave  him  on 
that  account.  This  inequality  of  treatment  slowly  and 
incompletely  gave  way.  The  Quinisext  adjudged  guilty  of 
adultery  the  man  who,  after  putting  away  his  lawful  wife, 
should  marry  another,  but  allowed  some  unspecified  con- 
sideration for  a  husband  deserted  by  his  wife.  It  is  pro- 
bable that  a  licence  to  take  another  wife  was  intended.  An 
elder  contemporary  of  the  Council  was  Theodore  of  Tarsus, 
the  Greek  monk  who  organized  the  nascent  English  Church  ; 
he  did  not  forget  his  origin  when  he  changed  his  tonsure, 
and  his  replies  to  questions  digested  under  the  title  of  a 
Penitential  are  full  of  references  to  Basil  the  Great  and  other 
Eastern  authorities  ;  in  these  we  find  permission  to  marry 
very  freely  accorded  to  a  husband  whose  wife  has  left  him 
with  contempt,  has  been  carried  away  captive,  or  has  been 
put  away  for  adultery,  and  even  the  adulterous  wife  might 
be  allowed  to  take  a  new  husband  after  five  years  of  penance. 
These  may  have  been  concessions  to  a  rude  nation  of  neo- 
phytes, but  they  are  not  to  be  matched  in  other  records  of 
the  West,  and  they  were  at  least  based  on  the  practice  of 
the  Eastern  Churches.  When  the  legal  regulation  of  mar- 
riage came  into  the  hands  of  the  hierarchy,  divorce  was 
much  more  severely  restrained  than  under  the  Civil  Law, 
but  it  was  still  allowed  on  various  grounds,  which  have  been 
much  extended,  especially  in  Russia,  by  more  recent  legisla- 
tion. There  is  no  pretence  of  actually  dissolving  the 
marriage.  The  bond  remains,  and  the  parties  are  not  set 
free  to  contract  another  marriage  at  pleasure ;  but  the 
ecclesiastical  authority  can  give  a  licence  to  marry  in  spite 
of  this  impediment,  and  it  seems  to  be  granted  pretty  freely 
to  those  who  ask.1 

1  Milasch,  p.  598.     See  the  passage  quoted  above,  p.  104. 


128  OF  MARRIAGE  IN  CANON  LAW 

Two  things  remain  to  be  noted.  Preliminary  espousals 
(fjLvrjo-reia)  are  reckoned  essential  to  a  valid  marriage.  If 
not  blessed,  they  are  revocable  ;  if  blessed,  they  so  far  par- 
take of  the  nature  of  marriage  as  to  constitute,  in  accor- 
dance with  the  ruling  of  the  Quinisext,  a  bar  to  any  other 
union.  These  provisions,  however,  are  now  of  small  impor- 
tance, since  the  completion  of  the  nuptials  usually  follows 
immediately  upon  espousal. 

Holy  Orders,  in  spite  of  the  strict  rule  forbidding  those 
already  ordained  to  marry,  is  not  made  an  impediment ; 
marriage  actually  contracted  by  a  priest  or  a  deacon  is  not 
annulled,  even  provisionally,  but  the  offender  is  deposed 
from  the  sacred  ministry. 

Thus,  from  the  seventh  century,  or  longer,  the  Eastern 
Churches  have  enjoyed  a  fairly  consistent  canonical  regula- 
tion of  marriage,  and  from  the  ninth  century  have  been 
invested,  by  a  definite  Act  of  State,  with  its  legal  control. 
Two  causes  have  contributed  to  this  result.  The  Catholic 
Church  was  for  ages  almost  conterminous  with  the  Empire, 
and  the  authorities  of  Church  and  State,  in  spite  of  fierce 
quarrels  on  occasion,  lived  together  in  mutual  respect.  The 
Church  was  sometimes  dominant,  as  during  the  reign  of  the 
Palaeologi,  sometimes  unduly  subservient ;  but  the  two 
powers,  the  two  organizations  of  human  society,  have  never 
been  confused.  A  modus  vivendi  was  consequently  arranged, 
which  could  survive  the  transfer  of  the  Empire  to  a  dynasty 
professedly  unchristian  ;  the  Church  maintains  relations 
with  the  Ottoman  State  differing  but  little  from  those  in 
which  it  stood  towards  the  Christian  Emperors,  becomes 
the  acknowledged  organization  of  all  orthodox  Christians 
in  the  curious  system  of  nationalities  by  which  that  State  is 
administered,  and  enjoys  the  undisputed  control  of  marriage 
in  regard  to  its  own  members.  This  principle  of  close  alli- 
ance was  carried  with  the  Church  to  Russia  and  other  coun- 


LEGAL  CONTROL  BY  EASTERN  CHURCH    129 

tries  beyond  the  pale  of  the  Empire,  where  it  still  subsists. 
Outside  the  Turkish  dominions,  the  regulation  of  the  purely 
civil  aspects  of  marriage  is  left  ungrudgingly  to  the  State, 
the  regulation  of  marriage  in  its  religious  and  sacramental 
aspect  is  left  as  unreservedly  to  the  Church.  The  State, 
says  the  Bishop  of  Zara,  may  not  treat  as  invalid  a  marriage 
recognized  as  valid  by  the  Church.1  He  is  not  speaking 
only  of  a  State  the  head  of  which  professes  Orthodoxy,  for 
he  has  in  view  his  own  position  under  the  Austrian  mon- 
archy ;  the  principle  is  universally  applied.  In  Russia, 
under  the  influence  of  the  Church,  it  is  extended  to  all  reli- 
gions, orthodox  Christians  having  secured  for  others  the 
privileges  which  they  claim  for  themselves  ;  marriage  is 
treated  throughout  the  empire  as  a  religious  institution 
under  the  control  of  the  various  religious  organizations, 
Christian,  Jewish  or  Musulman,  to  which  the  people  adhere. 

While  the  Eastern  Churches  thus  perfected  their  system, 
the  fortunes  of  the  Church  in  the  West  were  very  different. 
The  Empire  was  broken  up,  Christianity  extended  to  the 
Northern  nations  before  it  was  completely  organized,  and 
the  religious  control  of  life,  in  regard  to  marriage  as  in  other 
respects,  had  to  be  worked  out  in  a  welter  of  confusion. 
Similar  results  were  eventually  attained,  but  after  long 
delay,  and  with  one  most  important  difference. 

The  Western  Churches  found  in  the  coming  of  the  bar- 
barians at  once  their  trial  and  their  opportunity.  They 
were  confronted  not  only  with  the  venerable  system  of 
Roman  law  but  also  with  customs  and  practices  which 
had  no  such  prestige.  The  ecclesiastical  authorities  could 
act  more  freely  in  face  of  Teutonic  kings,  wielding  an  irre- 
sistible power  of  the  sword,  than  against  the  mere  words  of 

1  Milasch,  p.  582.  "  Der  Staat  kann  eine  von  der  Kirche  als 
giltig  anerkennte  Eha  nicht  als  ungiltig  betrachten." 

M.C.8.  K 


130  OF  MARRIAGE  IN  CANON  LAW 

a  Roman  Emperor  who  could  barely  defend  himself  amid  the 
marshes  of  Ravenna ;  Roman  citizens  of  the  provinces 
overrun  by  invaders  could  lean  upon  their  traditionary  juris- 
prudence and  the  edicts  of  their  nominal  sovran,  but  Goths 
and  Franks,  Burgundians  and  Lombards,  when  they  came 
within  the  borders  of  Catholic  discipleship,  were  fain  to  accept 
the  guidance  of  bishops  and  councils,  or  to  resist  with  a 
growing  consciousness  of  guilt.  Resistance  was  general ; 
the  rude  customs  of  the  nations  were  not  easily  put  aside, 
and  some  strange  expedients  of  compromise  were  for  a  time 
tolerated  by  the  Church.  A  new  penitential  system,  based 
on  the  Germanic  custom  of  penalties  in  money  or  money's 
worth,  makes  its  appearance,  replacing  or  complementing 
the  method  of  spiritual  censures ;  the  mulct  is  a  full  dis- 
charge, and  there  seems  to  be  a  vast  extension  of  St.  Augus- 
tine's principle,  "  Fieri  non  debuit,  factum  valet ;  "  but  from 
the  fifth  to  the  eleventh  century  the  steady  persistence  of 
the  Church  is  making  itself  felt,  and  certain  departments  of 
human  life  are  brought  even  externally  under  its  control. 
Conspicuous  among  these  is  marriage. 

The  work  was  chiefly  done  by  the  continual  exercise  of  a 
rather  indeterminate  discipline,  enforcing  with  more  or  less 
efficiency  the  unquestioned  rules  and  customs  of  Chris- 
tianity. The  records  are  obscure,  appearing  occasionally  in 
the  acts  of  martyred  bishops,  which  reflect  the  general  state 
of  society  perhaps  more  accurately  than  the  particular 
features  of  the  cases  described.  Something  may  be  gathered, 
however,  from  the  genuine  acts  of  councils,  the  greater 
authority  of  which  was  invoked  when  individual  bishops 
were  lax,  or  overborne  by  the  self-will  of  kings  and  terri- 
torial magnates.  We  find  the  second  Council  of  Orleans, 
in  the  year  536,  not  only  renewing  the  prohibition  of  inter- 
marriage between  a  Christian  and  a  Jew,  but  also  peremp- 
torily ordering  the  separation  of  the  parties  so  united.  The 


WESTERN  DISCIPLINE  131 

Church  was  beginning  to  treat  such  a  marriage  as  void  in 
law ;  in  other  words,  the  prohibition  was  becoming  a  diri- 
ment impediment.  The  same  council  had  occasion  to  forbid 
the  dissolution  of  marriage  for  some  obscure  cause,  voluntatis 
contrarietate.  Some  years  later,  the  third  Council  of  Orleans 
allowed  the  continued  cohabitation  of  parties  who  had  con- 
tracted an  incestuous  marriage,  if  it  could  be  shown  that 
they  had  acted  in  ignorance,  as  neophytes,  and  not  in  con- 
tempt of  the  divine  or  ecclesiastical  order.  In  the  year  556, 
a  council  held  at  Paris  renewed  against  the  King  Clothaire 
the  prohibition  of  marriage  with  a  sister-in-law,  specially 
condemning  an  offender  who  "  sacerdotem  suum  audire 
neglexerit,"  and  forbade  the  practice  of  claiming  a  woman 
in  marriage,  by  assignment  of  the  King,  without  the  consent 
of  her  parents. 

If  the  Popes  seem  to  have  had  less  to  do  with  this  work 
than  might  be  expected,  it  should  be  remembered  that  after 
the  middle  of  the  sixth  century  they  were  held  under  strait 
control  by  the  Emperors  reigning  in  the  East  and  their 
Exarchs  at  Ravenna.  Great  as  was  the  veneration  ex- 
pressed and  felt  for  the  Roman  pontiff,  he  was  for  a  long 
period  rather  a  force  in  reserve  than  a  dominant  factor  in 
the  life  of  the  Church.  St.  Gregory  the  Great  stands  out 
alone  from  a  list  of  insignificant  personalities,  or  worse,  as 
having  any  conspicuous  effect  on  the  growth  of  institutions  ; 
and  of  Gregory  we  have  the  letter  addressed  to  Augustine 
of  Canterbury  in  reply  to  his  questions.  Two  of  these  con- 
cerned marriage.  Augustine's  question  whether  two  brothers 
might  marry  two  sisters  indicates  some  lack  of  common  in- 
formation, and  the  Pope's  reply  that  it  might  be  done  since 
there  was  nothing  in  Holy  Scripture  against  it,  seems  by 
implication  to  put  the  prohibitions  that  were  current  upon 
a  basis  other  than  that  of  ecclesiastical  canon  or  custom.  To 
another  question  regarding  consanguinity  and  affinity,  Gre- 


132  OF  MARRIAGE  IN  CANON  LAW 

gory  replied  that  the  secular  laws  of  the  Roman  State  allowed 
marriages  which  the  Church  could  not  approve.  The  con- 
demnation of  them  he  founded  partly  on  the  Divine  Law, 
with  a  reference  to  the  Levitical  prohibitions,  partly  on 
practical  experience,  with  a  curious  assertion  that  these 
marriages  were  found  to  be  infertile  ;  he  quoted  also  the 
testimony  of  St.  John  the  Baptist  against  such  unions. 
Englishmen,  however,  who  had  contracted  incestuous  mar- 
riages before  their  conversion,  were  to  be  treated  with  gentle- 
ness ;  they  were  to  be  admonished  to  abstain  from  the  use 
of  marriage,  not  without  warnings  of  eternal  punishment 
to  follow,  but  at  the  same  time  they  were  not  absolutely 
to  be  denied  baptism  or  required  to  separate  under  pain  of 
excommunication,  for  they  must  not  be  punished  for  offences 
committed  in  time  of  ignorance.  The  Church  tolerates  some 
things,  and  discreetly  connives  at  some  things,  wrote  the 
holy  pontiff,  with  a  view  to  their  ultimate  suppression.  But 
in  the  faithful  such  things  were  to  be  sternly  repressed.1 
If  the  questions  of  Augustine  illustrate  the  perplexities 
of  Roman  Christians  in  face  of  the  customs  of  the  new 
nations,  the  Pope's  replies,  with  their  curious  inconsistencies 
and  halting  assertion  of  principle,  show  how  far  the  Church 
was  even  yet  from  having  a  clearly  defined  marriage  law, 
and  how  tentative  was  the  control  then  exercised.  It  should 
be  observed  also  that  the  Church  and  the  Respublica  are  still 
regarded  as  two  mutually  independent  and  even  antagonistic 
powers.  In  the  Gothic  Kingdom  of  Spain  the  difference, 
and  even  the  distinction,  of  the  two  powers  tended  to  dis- 
appear, and  legislation  of  all  kinds  was  effected  by  councils 

1  Baeda,  Hist.  Eccl.  i.  27.  The  letter  was  once  considered  almost 
certainly  inauthentic,  but  a  careful  study  by  Mommsen  (Neuts 
Archiv.  d*r  Gistllschaft  fur  d.d.  Gischichtskunde,  vol.  xvii.,  pp.  387 
seqq.)  has  put  another  face  upon  it.  S«e  also  Dudden,  Gregory  the 
Gnat,  rol.  ii.  p.  i3«. 


RESPUBLICA    CHRISTIANA  133 

which  may  be  regarded,  according  to  the  business  transacted, 
as  ecclesiastical  or  civil.  The  same  union  or  confusion  ap- 
pears in  the  Prankish  Kingdom  under  the  Karlings,  and  the 
results  may  be  studied  in  a  long  series  of  Capitularies.  The 
English  Kingdoms  learnt  the  same  method,  and  the  way 
was  gradually  prepared  for  the  great  conception  of  an  uni- 
tary Respublica  Christiana,  which  fired  the  imagination  and 
dominated  the  politics  of  the  eleventh  century. 

The  political  theory  into  which  this  conception  was  ulti- 
mately reduced  by  a  poet  and  statesman  like  Dante,  by  the 
great  canonists  of  the  thirteenth  century,  and  by  the  cham- 
pions of  the  Empire  in  the  fourteenth  century,  is  not  here 
our  concern.  These  men  worked  upon  a  state  of  things 
actually  existing  ;  their  theories  followed  facts ;  there  was 
a  practical  system,  involving  intolerable  friction,  but  hold- 
ing the  field  to  the  exclusion  of  any  simpler  device.  Western 
Europe  was  a  real  political  unit,  essentially  Christian  by 
profession,  in  which  the  distinction  of  Church  and  State  had 
disappeared.  Political  philosophy  sought  a  reason  for  this 
in  the  natural  unity  of  the  human  race,  redeemed  in  Christ ; 
mankind  was  potentially  gathered  into  the  apostolic  fellow- 
ship, and  the  actual  state  of  things  could  be  treated  as  an 
approximation  to  the  ideal.  But  that  was  an  afterthought ; 
Christendom  was  a  working  unit  before  medieval  philosophy 
came  to  the  birth.  The  Empire  played  an  important  part 
both  in  the  practical  working  of  the  system  and  in  the  de- 
velopment of  theory,  but  the  system  was  not  an  outgrowth 
from  the  Empire  ;  it  began  while  the  Empire  was  in  abeyance 
throughout  the  greater  part  of  the  West,  it  agreed  neither 
with  the  traditions  of  the  fourth  and  fifth  centuries,  nor  with 
the  conceptions  of  Justinian  ;  the  translatio  imperii,  the 
conveyance  of  the  imperial  dignity  to  the  House  of  the  Kar- 
lings, did  but  give  a  wider  scope  to  methods  that  were  already 
established  under  the  Prankish  ~  monarchy.  There  was  a 


134  OF  MARRIAGE  IN  CANON  LAW 

Christian  community,  loosely  but  effectively  knit  together, 
which  might  properly  be  called  the  Church,  but  in  a  sense 
larger  than  that  of  St.  Paul,  or  even  of  St.  Augustine  ;  with- 
in this  community  was  a  tangle  of  local  authorities,  spiritual 
and  temporal ;  there  was  a  temporal  chief,  the  Emperor, 
invested  with  shadowy  and  indeterminate  powers  ;  there 
was  a  spiritual  chief,  the  Pope,  exercising  powers  indeter- 
minate and  therefore  capable  of  extension,  but  real  and 
terribly  effective.  Such  was  the  position  when  the  Saxon 
Emperors  by  their  personal  exertions  delivered  Rome  and 
the  Church  from  enormous  scandals,  and  so  revived  a 
power  which  was  to  dispute  successfully  with  their  successors 
the  real  headship  of  the  world. 

It  is  in  connexion  with  this  system  that  we  must  consider 
the  absolute  control  of  the  law  of  marriage  acquired  by  the 
Spiritualty  during  the  Middle  Ages.  This  jurisdiction  must 
not  be  confounded  with  that  which  we  have  seen  to  be  already 
established  in  the  East.  We  are  not  to  think  of  a  power 
specially  conceded  to  ecclesiastics  by  the  temporal  authority. 
There  was,  indeed,  in  England  an  exceptional  jurisdiction 
of  this  kind  in  testamentary  matters,  unknown  elsewhere  in 
Christendom,  which  Lyndwood  could  found  only  by  guess- 
work "  super  consensu  Regis  et  suorum  Procerum  in 
talibus  ab  antique  concesso ;  "  1  but  the  authority  of  the 
spiritual  courts  in  matrimonial  causes  was  part  of  the  com- 
mon law  of  Christendom.  Neither  must  we  draw  too  close 
a  comparison  with  the  action  of  Innocent  I,  cited  above  ; 
for  here  there  is  no  other  law  to  be  set  aside  by  the  rule  of 
the  Church.  What  we  see  is  the  final  outcome  of  the  assump- 
tion of  supreme  authority  in  such  matters  by  the  Church, 
which  characterizes  the  Gallican  councils  of  the  sixth  cen- 
tury. It  has  borne  this  fruit  precisely  because  of  an  appar- 

1  Provinciate,  p.  176,  s.v.  Ecclesiasticarum  libertatiim,  and  p.  263, 
s.v.  Ab  olim. 


POWER  OF  THE  SPIRITUALTY  135 

ent  check  in  the  mixed  councils  of  the  eighth  century.  The 
merger  of  Church  and  Kingdom  in  a  single  community  has, 
after  all,  made  a  new  differentiation  necessary,  and  it  takes 
the  form  of  a  differentiation  of  function  within  the  body. 
The  *  Church  regulates  marriage  all  through,  but  first  as 
against  the  secular  law  of  the  Commonwealth,  of  Emperor  or 
King,  afterwards  in  undisputed  sway  as  the  universal  organi- 
zation which  has  swallowed  up  all  forms  of  human  society. 
In  this  second  stage  the  control  eventually  falls  into  the 
hands  of  the  Spiritualty.  In  England,  before  the  end  of  the 
twelfth  century,  Glanvill  has  openly  acknowledged  the 
exclusive  competence  of  the  spiritual  forum  to  determine 
the  validity  of  a  marriage.1  The  work  is  done  by  the  same 
hands  as  in  the  first  stage,  by  the  bishops  and  their  officials, 
and  there  is  thus  an  appearance  of  identity,  but  the  position 
is  fundamentally  changed.  The  spiritual  authority  is  no 
longer  opposing  and  correcting  the  law ;  it  is  making  the 
law  and  administering  the  law. 

This  power  of  the  Spiritualty  in  regard  to  marriage  should 
be  traced  to  its  true  cause.  We  must  not,  with  some  modern 
theologians  and  canonists,  base  it  on  a  recognition  of  the 
sacramental  character  of  marriage,  for  it  was  in  full  vigour 
before  the  doctrine  of  the  sacraments  was  sufficiently  de- 
veloped and  defined  to  produce  such  an  effect.  We  must  not 
refer  it  to  the  peculiar  circumstances  of  Western  Europe,  for 
we  have  seen  a  similar  result  produced  under  other  conditions 
in  the  East.  It  was  probably  due  in  the  first  place  to  the 
intimate  connexion  of  pure  morality  with  marriage  law,  and 
was  established  by  the  growing  conviction  that  this  was  of 
divine  and  not  of  human  ordering.  The  Divine  Law  was 
crudely  conceived  in  terms  of  the  Levitical  books,  but  even 
so  it  conquered  men's  imagination.  Of  those  sacred  books 

1  Pollock  and  Maitland,  Hist,  of  English  Law,  ii.  367. 


136  OF  MARRIAGE  IN  CANON  LAW 

the  spiritual  chiefs  of  the  Church  were  the  guardians  and  the 
interpreters,  and  they  were  no  less  the  teachers  and  vindi- 
cators of  morality  ;  on  both  grounds  they  were  the  natural 
protectors  of  marriage. 

They  would  have  been  this  even  had  the  confused  juris- 
diction of  mixed  councils  and  mixed  tribunals  continued. 
The  differentiation  of  function  which  took  its  place  threw 
everything  into  their  hands.  This  differentiation,  tradi- 
tionally attributed  in  England  to  a  single  legislative  act  of 
the  Conqueror,  was  part  of  a  great  and  slow  movement  of 
thought,  which  culminated  in  the  codification  of  Canon  Law. 
In  the  West,  as  in  the  East,  but  with  less  publicity,  collec- 
tions of  canons  had  existed  from  early  times,  and  some  were 
expressly  approved  by  important  councils.  In  the  middle 
of  the  sixth  century  Dionysius  Exiguus  made  a  new  depar- 
ture by  adding  to  the  conciliar  decrees  which  he  gathered 
from  all  sources  the  decretal  epistles  of  the  Bishops  of  Rome 
that  were  preserved  in  the  pontifical  archives.  Early  in 
the  seventh  century,  a  collection  of  the  same  kind,  doubt- 
fully attributed  to  St.  Isidore  of  Seville,  was  made  and  pub- 
lished in  Spain.  The  ninth  century  saw  the  production  of 
the  forged  decretals.  In  the  year  1086  Anselm  of  Lucca 
put  out  a  new  and  enlarged  collection,  and  early  in  the 
twelfth  century  Ivo  of  Chartres  composed  his  Panormia, 
or  Pannonica,  in  imitation  of  the  Pandects  of  Justinian. 
But  something  more  was  demanded.  All  these  works  were 
mere  accumulations  of  disconnected  matter,  words  of  the 
Church  uttered  in  varied  accents  of  authority.  In  the  year 
1151  appeared  the  Concordantia  discordantium  Canonum, 
or  Decretum  of  Gratian,  which  marks  a  new  departure.  It 
is  a  digest,  laborious  but  uncritical,  of  all  the  heterogeneous 
matter  previously  collected ;  canons  and  decretals  are  no 
longer  set  down  side  by  side,  to  be  read  independently  or 
compared  with  one  another  by  the  reader  ;  they  are  dis- 


THE  DECRETUM  OF  GRATIAN  137 

perse d  under  systematic  headings  according  to  their  subject, 
and  illustrated  by  citations  from  Holy  Scripture,  by  extracts 
from  the  writings  of  the  Fathers  and  by  comments  of  the 
author  himself.  The  purpose  of  this  study  can  easily  be 
ascertained.  Canon  Law  had  hitherto  been  a  mass  of 
ecclesiastical  traditions,  maintained  and  administered  by 
local  hierarchies,  agreeing  with  each  other  more  closely 
than  might  be  expected,  but  yet  full  of  diversity,  and  kept 
in  such  unity  as  they  possessed  only  by  appeals  to  Rome 
and  by  the  occasional  supervision  of  the  authority  which 
the  Popes  had  gathered  to  themselves  in  the  course  of  ages. 
This  customary  law,  residing  in  the  breast  of  judges  and  ad- 
ministrators who  had  nothing  else  to  guide  them  but  a  quan- 
tity of  indeterminate  records  in  the  current  collections,  had 
given  satisfaction  because  it  was  in  keeping  with  the  general 
practice  of  Western  Europe.  But  the  revival  of  the  study 
of  the  Roman  civil  law  in  the  eleventh  century  awakened 
new  desires.  In  the  schools  of  Bologna  men  read  the  Corpus 
Juris  Civilis,  and  found  there  an  ordered  system  which 
made  them  dissatisfied  with  the  confusion  of  the  existing 
practice.  The  science  of  jurisprudence  sprang  into  existence. 
An  ecclesiastical  Justinian,  occupying  the  Holy  See,  might 
have  produced  a  new  Code,  with  Pandects  and  Institutes, 
but  that  was  possible  only  in  a  time  of  peace  and  as  the 
fruit  of  the  long  labours  of  jurists,  and  the  Popes  were  en- 
gaged in  arduous  struggles  which  held  their  attention  to  the 
most  pressing  needs  of  the  moment.  This  struggle  however, 
while  it  hindered  such  a  work,  made  the  need  of  it  more 
urgent.  The  Popes  were  standing  firm  against  the  growing 
power  of  the  Emperor,  and  labouring  to  differentiate  those 
spiritual  matters  which  should  be  under  the  exclusive  con- 
trol of  the  Spiritualty.  The  recovery  of  the  Civil  Law,  and 
the  enthusiasm  with  which  it  was  received,  threatened  an 
immense  aggrandisement  of  the  imperial  power  ;  should  the 


138  OF  MARRIAGE  IN  CANON   LAW 

German  Caesar  become  in  very  deed  the  Princeps  of  Justin- 
ian's laws,  the  Pope  would  play  a  subordinate  part  in  the 
Christian  commonwealth.  The  current  laws  of  the  Church 
must  be  systematized  to  meet  this  invasion.  If  the  old 
code  was  put  forward  as  representing  a  juristic  ideal  to 
which  the  whole  administration  of  law  should  conform,  and 
against  which  a  floating  mass  of  custom  could  not  hold  its 
own,  a  new  code  must  be  formed  out  of  the  current  laws 
which  should  have  the  same  advantage  of  compactness  and 
accessibility,  with  the  added  weight  of  a  more  spiritual 
authority.  What  the  Popes  could  not  do  a  private  student 
might  at  least  begin,  and  Gratian's  Decretum  was  born. 

It  had  an  immediate  success.  It  was  read  and  glossed. 
It  took  its  place  beside  the  Corpus  luris  at  Bologna.  It  soon 
reached  the  incipient  schools  of  Oxford,  lagging  behind  its 
rival  there  by  a  bare  decade  of  years.  Within  two  genera- 
tions the  glossators  had  done  so  much  work  that  their  com- 
ments also  had  to  be  codified,  and  were  reduced  to  common 
form  in  the  Glossa  ordinaria,  which  became  an  integral 
part  of  the  text.  After  the  glossators,  the  canonists,  who 
were  to  the  new  code  what  the  jurists  were  to  the  old. 
Sinibaldi  Fieschi,  afterwards  Pope  Innocent  IV,  was  the 
father  of  them.  If  the  glossators  tried  to  ascertain  the  true 
sense  of  the  text,  the  canonists  laboured  to  expound  it  in 
application  to  cases,  and  to  bring  it  into  relation  with  cur- 
rent but  uncodified  usages.  In  the  meanwhile,  Gregory  IX 
had  summoned  the  industry  of  Raymond  of  Penafort  to 
digest  in  similar  fashion  the  new  matter  which  had  accumu- 
lated by  legislation  since  the  time  of  Gratian.  Boniface 
VIII  and  Clement  V  followed  his  example,  and  two  further 
supplements  completed  in  the  year  1483  the  Corpus  luris 
Canonici. 

This  great  digest  was  designed  for  a  double  use.  It  was 
a  textbook  for  Canonists,  the  foundation  of  study  and  of 


DEVELOPMENT  OF  LEGALISM  139 

lectures  in  the  Universities  ;  it  was  also  a  practical  guide 
for  ordinaries  and  advocates  in  the  spiritual  courts.  A  con- 
siderable part  of  it  is  devoted  to  the  law  of  marriage,  which 
brought  to  those  courts  much  lucrative  business.  It  was 
at  once  the  consequence  and  the  furthering  cause  of  a  great 
revolution.  The  systematizing  of  the  Canon  Law  has  been 
described  alternatively  as  the  greatest  triumph  and  the 
greatest  disaster  of  the  Church.  Perhaps  the  two  judgments 
may  run  into  one.  It  was  a  triumph  for  the  Church  to  im- 
pose its  penitential  discipline  upon  the  unwilling  as  effective 
law,  but  in  this  triumph  the  Church  may  have  suffered  its 
worst  loss.  Spiritual  discipline  is  concerned  first  with  the 
good  of  souls,  systematic  law  with  the  good  of  society.  In 
canonical  process  the  original  end  of  discipline  was  nomin- 
ally kept  in  view,  and  an  offender  was  brought  into  court  pro 
salute  animae  ;  but  matters  of  a  much  more  mundane  char- 
acter engaged  the  attention  of  ecclesiastical  judges,  who 
were  compelled  to  use  both  the  minor  and  the  major  cen- 
sures of  the  Church  for  the  enforcement  of 'decrees  that  were 
remote  from  the  affairs  of  the  soul.  When  Popes  arrived 
at  the  point  of  employing  excommunication  as  a  weapon  of 
war  in  a  quarrel  with  men  against  whom  they  had  themselves 
taken  up  arms  and  formed  alliances,  they  were  following  in 
the  track  by  which  the  practice  of  the  Canon  Law  had  led 
them.  Another  fault  of  the  system  was  a  certain  confusion 
of  values.  Men  are  prone  to  take  legality  as  the  measure  of 
light,  and  the  moral  teaching  of  the  Church  was  originally 
set  over  against  a  mere  legality,  requiring  a  service  of  love 
that  could  not  be  enforced.  The  law  winks  at  evils  which 
can  be  endured  without  public  disaster,  or  which  cannot  be 
suppressed  without  dangerous  disturbance  of  social  order. 
When  spiritual  discipline  passed  into  the  category  of  formal 
law  the  moral  witness  of  the  Church  was  inevitably  weakened. 
This  would  probably  have  happened,  even  if  it  had  remained 


140  OF  MARRIAGE  IN  CANON  LAW 

a  thing  apart  from  mundane  concerns  ;  but  when  the  Church 
undertook  the  legislative  and  judicial  functions  of  a  civic 
community,  the  trouble  was  intensified.  There  was  a  recur- 
rence of  those  evil  results  of  Theocracy  which  we  have 
observed  in  the  Jewish  system.  The  Church  was  at  once 
teacher  of  the  Divine  Law,  director  of  religious  conduct,  and 
legislator  for  the  temporal  needs  of  human  life.  All  three 
functions  are  needed  in  respect  of  marriage,  but  they  can  be 
kept  apart ;  the  concentration  of  them  in  the  hands  of  the 
Spiritualty  led  to  a  blurring  of  boundaries.  Canonists 
laboured  to  draw  clear  lines,  but  it  was  not  easy  for  the 
common  sort  to  distinguish  between  the  immutable  precepts 
of  the  moral  law  and  the  present  requirements  of  a  paternal 
government. 

Decretals  were  law  for  the  whole  of  Western  Christendom. 
But  they  were  imposed  upon  a  vast  body  of  unsystematic 
and  customary  law,  varying  from  region  to  region,  from 
realm  to  realm.1  Now  when  this  kind  of  thing  happens, 
there  may  be  various  results.  Customs  may  be  overruled 
at  once  by  written  law,  they  may  be  slowly  modified  by  the 
pressure  of  ordered  theory,  or  they  may  stubbornly  hold 
their  own  even  to  the  nullification  of  the  imposed  law.  From 
the  time  of  Edward  I  we  have  been  familiar  in  England  with 
the  principle  that  statute  law  overrides  customary  law.  The 
reason  is  obvious.  England,  except  for  some  local  fran- 
chises, was  an  unitary  kingdom,  and  statute  law  was  the 
expressed  will  of  the  King  and  his  people,  who  thus  volun- 
tarily abandoned  any  custom  contrariant  to  the  new  legis- 
lation. But  Christendom,  though  unitary  in  theory,  was 
in  fact  minutely  divided  ;  decretals  came  from  a  hierarchical 


1  It  is  the  German  distinction  of  Juristenrecht  and  Volksrecht 
(Gierke-Maitland,  Political  Theories  of  the  Middle  Ages,  p.  xiii.), 
not  the  English  distinction  of  statute  law  and  common  law. 


CHECKS  ON   IUS  COMMUNE  141 

superior,  who  did  not  seek  the  consent  of  those  concerned  ; 
must  their  customs  give  way  ?  The  answer  of  the  canonists 
may  have  been  due  to  the  impossibility  of  enforcing  in  re- 
mote corners  of  Europe  the  decrees  that  issued  from  Rome, 
but  that  is  only  to  say  that  in  the  true  spirit  of  jurisprudence 
they  took  account  of  facts  ;  whatever  the  cause,  their  con- 
clusion for  the  negative  was  effectively  received,  and  local 
custom  contrariant  to  a  decretal  was  held  to  bar  its  opera- 
tion. A  prescription  of  forty  years  was  sufficient.  In  like 
manner  a  notorious  desuetude  of  the  same  length  of  time 
might,  under  stringent  conditions,  abrogate  a  law  previously 
in  force. 

It  is  evident  that  a  custom  of  the  Church  may  be  either 
universal  or  particular  and  local,  but  when  canonists  speak 
of  consuetudo  without  specification  they  mean  the  latter  kind 
only,  which  they  set  over  against  the  ius  commune,  or  general 
law  of  Christendom.     This  law  ran  everywhere  alike.     We 
must  not  turn  aside  to  the  notion  of  a  foreign  Canon  Law, 
foreign  to  each  several  country  or  locality,  or  native  per- 
haps only  to  the  Roman  diocese,  which  would  not  be  in  force 
except  where  it  was  definitely  received  and  confirmed  by 
local  adoption.     This  notion  was  probably  borrowed  from 
the  circumstances  of  the  Reception  of  the  Roman  civil  law  in 
Germany  ;  it  has  vitiated  much  discussion  of  the  subject  in 
England,  but  has  been  put  to  final  rest,  one  may  hope,  by  the 
magistral  work  of  Maitland  in  his  essay  on  "  Roman  Canon 
Law  in  the  Church  of  England/'  Yet  Maitland's  own  present- 
ment of  the  case  was  not  flawless.     He  spoke  of  the  decretals 
as  "  absolutely  binding  statute  law,"  which  they  were  not, 
since  they  could  be  nullified  by  contrary  custom.     He  seems 
to  have  regarded  such  custom  as  an  external  obstacle,  hinder- 
ing the  proper  working  of  the  Canon  Law,  to  be  evaded  or 
accepted  with  resignation  by  ecclesiastical  ordinaries.     But 
local  customs  were  not  external  to  the  Canon  Law ;   they 


142  OF  MARRIAGE  IN  CANON  LAW 

were  themselves  part  of  the  system.  In  a  Roman  court 
an  English  or  a  Danish  custom  might  be  imperfectly  known, 
and  a  cause  pending  from  one  or  the  other  country  might  be 
erroneously  determined  by  reason  of  such  ignorance,  but 
if  pleaded  and  proved  it  would  be  as  good  law  there  as  in  a 
local  tribunal.1 

The  law  of  marriage  was  singularly  uniform  throughout 
the  Western  Church,  but  a  right  understanding  of  the  nature 
of  Canonical  custom  is  required  for  the  elucidation  of  one 
exception,  the  importance  of  which  has  been  greatly 
exaggerated.  According  to  the  ins  commune,  a  child  born 
out  of  wedlock  would  be  legitimated  by  the  subsequent 
marriage  of  his  parents.  A  custom  of  the  realm  of  England 
put  a  certain  restraint  on  the  operation  of  this  law,  for  in 
regard  to  inheritance  such  legitimation  was  not  recognized. 
The  reply  of  the  barons,  "  Nolumus  leges  Angliae  mutari," 
to  the  plea  of  the  prelates  at  Merton,  in  the  year  1236,  for 
the  reform  of  this  bad  custom,  has  been  extolled  as  a  declar- 
ation of  national  independence  ;  but  it  was  nothing  more 
than  a  profession  of  blockish  conservatism.  It  was  effective, 
and  to  this  day  the  injustice  continues.  In  England  alone, 
I  believe,  and  in  countries  deriving  their  law  from  England, 
legitimation  by  subsequent  marriage  is  disallowed.  But 
the  operation  of  the  custom  was  confined  within  the  strait- 
est  limits.  The  ecclesiastical  courts,  but  for  the  special 
privilege  by  which  in  England  they  administered  testa- 
mentary law,  might  probably  have  ignored  it ;  as  it  was, 
they  declined  to  recognize  its  validity,  except  only  when 
determining  questions  of  inheritance a ;  in  purely  spiritual 

1  There  is  useful  criticism  of  Maitland  in  Mr.  Ogle's  book,  The 
Canon  Law  in  Mediaeval  England,  but  Maitland 's  chief  arguments 
remain  uncontroverted. 

2  Even  this  exception  is  doubtful.     See  Pollock  and  Maitland, 
op.  cit.,  vol.  ii.,  p.  378. 


ADMINISTRATION  143 

matters  they  followed  the  general  law.  But  with  this  limi- 
tation the  custom  was  recognized  as  a  valid  exception  within 
the  general  law  of  marriage.  To  describe  it  as  a  custom  of 
the  realm  and  not  of  the  Church,  or  as  an  external  restraint 
put  upon  the  law  of  the  Church,  is  to  set  up  a  distinction 
which  was  not  valid  at  this  date.  The  realm  of  England  was 
merely  a  local  division  of  the  Christian  commonwealth,  and 
a  custom  of  the  realm  was  a  consuetudo  existing  within  the 
Church. 

This  case  apart,  local  customs  affecting  the  law  of  marri- 
age were  few  and  unimportant.  From  the  tenth  century  on- 
ward there  was  one  law,  finally  digested  in  the  Corpus  luris 
and  in  the  books  of  the  canonists,  for  the  whole  of  Western 
Christendom.  This  law  contained  all  those  divisions  which 
have  been  set  out  above  under  the  general  head  of  Human 
Law.  It  remains  to  indicate  briefly  its  principal  characteristics. 

Juridically,  the  law  was  administered  by  the  bishops  in 
their  several  jurisdictions,  but  there  were  numerous  exempt 
districts,  called  in  England  "  peculiars/'  which  were  wholly 
or  partly  withdrawn  from  the  control  of  the  diocesan  bishop, 
and  subject  either  immediately  to  the  Roman  See,  to  another 
bishop,  or  to  an  inferior  prelate  as  ordinary.  In  the  eleventh 
century  the  judicial  work  of  a  diocese  was  for  the  most  part 
entrusted  to  the  archdeacons  ;  later,  the  archdeacons  them- 
selves acquired  an  independent  but  subordinate  jurisdiction, 
and  their  former  work  passed  to  the  newly  constituted  courts 
of  the  bishop's  Official  and  Vicar-General,  these  two  offices 
being  in  England  usually  amalgamated  under  the  title  of 
Chancellor.  In  all  cases  alike  the  bishop  was  the  source  of 
authority,  and  capable  of  acting  in  person,  but  his  officials 
became  something  more  than  delegates  and  exercised  their 
functions  ex  iure.  There  was  thus  an  extremely  complicated 
judicature,  concerned  with  the  issue  of  dispensations  and 
with  the  hearing  and  determination  of  causes. 


144  OF  MARRIAGE  IN  CANON  LAW 

There  was  a  complete  system  of  appeals,  first  to  a  provin- 
cial court  acting  with  the  authority  of  the  metropolitan,  and 
thence  to  the  court  of  Rome.  Moreover,  some  dispensations 
and  some  contentious  causes  were  reserved  to  these  higher 
authorities,  whose  courts  thus  became  tribunals  of  first 
instance.  In  England,  for  example,  a  dispensation  from 
the  rule  requiring  marriage  to  be  contracted  in  facie  ecclesiae 
was  granted  only  by  the  Archbishop  of  Canterbury.  A  dis- 
pensation from  the  impediment  of  certain  grades  of  consan- 
guinity and  affinity  was  reserved  to  the  Pope.  I  have 
shown  cause  for  supposing  that  these  limitations  of  the 
power  of  a  bishop  are  in  the  nature  of  things  inconclusive, 
and  that  a  bishop  cannot  even  by  consent  divest  himself  of 
the  plenary  authority  of  the  apostolate.  Appeals,  reserva- 
tions, and  exemptions  belong  to  an  economy  which  is  toler- 
ated in  the  interest  of  order  and  good  administration,  and 
which  a  bishop  is  compelled  to  accept  by  the  practical  pres- 
sure of  a  power  to  depose  him  residing  in  the  general  episco- 
pate. By  the  operation  of  this  pressure,  as  also  by  the  good 
sense  of  all  concerned,  a  hierarchy  of  jurisdiction  has  been 
established  in  all  parts  of  the  Church,  to  be  disturbed  only 
under  the  greater  pressure  of  circumstances  demanding 
reform  by  revolutionary  methods.  In  other  words,  ecclesi- 
astical law,  so  far  as  it  concerns  the  mutual  relation  of  bishops, 
is  founded  on  a  consensual  compact,  from  which  any  party 
has  an  inalienable  right  to  withdraw.  But  the  Canon  Law 
of  the  Middle  Ages  did  not  rest  upon  this  Cyprianic  principle. 
It  rested  on  the  supposition  of  the  Papacy,  which  must  be 
distinguished  in  principle  from  any  superiority  vested  by 
ecclesiastical  custom  in  the  Roman  Pontiff.  To  the  Pope 
was  attributed  a  legislative  and  judicial  power  distinct  from 
that  of  the  episcopate  ;  and  this  doctrine,  though  not  formu- 
lated until  the  period  of  the  councils  following  the  Great 
Schism,  was  producing  fruit  in  action  at  least  as  early  as 


THE  PAPACY  145 

the  tenth  century.  The  privileges  of  exempt  jurisdictions, 
the  rights  of  metropolitans,  the  system  of  appeals,  though 
traceable  in  history  to  local  or  general  customs,  were  in 
juristic  theory  referred  to  that  kind  of  papal  concession 
which  in  some  cases  actually  existed.  Thus  it  came  about 
that  even  the  powers  left  to  a  bishop  could  be  represented 
as  vested  in  him  by  a  revocable  grant.  The  truer  concep- 
tion, however,  could  not  be  suppressed ;  and  hence  there 
were  current  two  sharply  contrasted  opinions :  the  one  that 
a  bishop  could  dispense  in  all  cases  not  expressly  withdrawn 
from  him ;  the  other,  that  he  could  dispense  only  in  cases 
expressly  referred  to  him  by  law. 

I  here  include  the  issue  of  dispensations  among  juridical 
functions  because  the  more  important  kind,  the  contingent, 
must  be  regarded  as  belonging  to  the  category  of  disciplin- 
ary judgments ;  and  indeed  absolute  dispensations  also, 
though  in  principle  legislative  acts,  were  in  the  medieval 
system  granted  as  if  by  judicial  process,  distinctively  known 
as  that  of  voluntary  jurisdiction.  It  was  a  mode  of  doing 
business  to  which  the  habits  of  the  time  lent  themselves  in 
many  departments. 

The  contentious  jurisdiction  of  the  spiritual  courts  covered 
both  the  fact  of  marriage  and  its  consequences.  The  most 
important  cases  were  those  in  which  the  validity  of  a  con- 
tract, and  the  reality  of  the  resultant  state  of  marriage,  were 
in  question.  The  existence  of  an  impediment,  the  authen- 
ticity and  legitimacy  of  a  dispensation  removing  it,  the  ratifi- 
cation of  a  contract  per  verba  de  praesenti,  the  actual  consum- 
mation of  the  marriage,  were  matters  to  be  determined  by 
evidence.  The  procedure  of  the  ecclesiastical  tribunals  and 
their  regulae  iuris  were  borrowed  almost  entire  from  the 
Civil  Law,  which  was  already  the  object  of  keen  study  at 
the  time  when  the  system  of  courts  was  framed.  On  the 
validity  of  a  marriage  depended  the  legitimacy  of  the  issue, 

M.C.S.  L 


146  OF  MARRIAGE  IN  CANON  LAW 

which  was  thus  determined,  directly  or  indirectly,  by  these 
courts.  But  the  judge  did  not  merely  declare  an  invalid 
marriage  to  have  no  binding  effect  on  the  parties  ;  he  re- 
quired them  under  pain  of  the  severest  censures  to  separate 
and  live  apart.  The  process  was  disciplinary,  pro  salute 
animae.  It  was,  therefore,  not  only  on  a  petition  of  one  of 
the  parties  that  a  pretensed  marriage  could  be  annulled ;  the 
spiritual  judge  could  proceed  against  them  on  the  strength 
of  any  information  received.  Information  might  be  laid  by 
a  person  interested  in  bastardizing  the  issue,  but  the  court 
ignored  such  motives.  A  party  might,  however,  pray  for 
relief  from  the  responsibilities  of  a  colourable,  though  invalid, 
marriage,  or  from  the  false  assertion  of  a  clandestine  con- 
tract which  would  be  valid  ;  hence  the  suit  for  jactitation 
of  marriage. 

Second  only  in  importance  was  the  jurisdiction  of  the 
courts  in  the  matter  of  divorce.  In  this  case  one  of  the 
parties  alone  might  pray  for  release  from  the  obligation  of 
cohabiting  in  bed  and  board,  the  grounds  for  such  release 
being  determined  by  law.  I  have  shown  that  release  of  this 
kind  is  in  the  nature  of  dispensation  from  natural  law,  and  it 
was  therefore  given  reluctantly  on  the  score  of  necessity. 
More  obvious  was  the  right  of  the  court,  in  case  of  unlawful 
separation,  to  require  the  parties  under  pain  of  disciplinary 
censure  to  resume  cohabitation.  A  temperate  control  was 
exercised  over  the  community  of  goods  proper  to  the  state 
of  marriage  ;  claims  arising  out  of  this  were  severely  re- 
stricted when  the  parties  had  contracted  clandestinely,  and 
not  in  facie  ecclesiae ;  the  courts  claimed  the  right,  when 
annulling  a  marriage  for  certain  causes,  to  assign  one  party  a 
moderate  alimony  at  the  charges  of  the  other,  and  a  like 
provision  could  be  made  in  case  of  divorce. 

The  effective  sanction  for  all  decrees  of  the  courts  was 
found  in  the  infliction  of  spiritual  censures.  The  foundation 


COERCIVE  METHODS  147 

of  the  whole  procedure  was  disciplinary ;  and  this  became 
evident,  however  juristic  the  matters  dealt  with  and  the 
methods  might  be,  when  coercive  measures  became  necessary. 
The  coercion  applied  by  the  ecclesiastical  courts  was  purely 
spiritual,  the  ultimate  sentence  for  the  recalcitrant  being 
the  major  excommunication.  This  involved,  even  at  the 
bottom  of  the  hierarchic  scale,  the  abuse  of  spiritual  weapons 
for  determining  temporal  disputes  which  was  the  source  of 
conspicuous  scandals  in  higher  quarters.  Already  in  the 
eleventh  century  St.  Peter  Damian  protested  in  vain.  The 
abuse  continued,  and  became  more  flagrant.  It  was  self- 
destructive,  for  the  censures  so  misapplied  lost  their  terrors. 
The  malediction  of  the  Church,  reinforced  by  the  public 
opinion  of  the  faithful,  which  St.  Paul  found  effective  in  the 
case  of  the  incestuous  Corinthian,  proved  insufficient  for  the 
maintenance  of  social  order  when  it  was  invoked  for  the 
correction  of  minor  faults  in  the  general  body  politic.  The 
Spiritualty  had  undertaken  the  administration  of  essentially 
temporal  affairs,  and  needed  the  help  of  the  temporal  arm. 
That  help  was  sought  only  in  the  last  resort  for  the  suppres- 
sion of  contumacy,  and  it  was  not  sought  in  vain  ;  the  Chris- 
tian commonwealth  had  to  stand  by  its  ministers.  In  Eng- 
land this  temporal  support  took  the  form  of  the  King's  writ 
de  excommunicato  capiendo  ;  a  recalcitrant  subject,  who 
would  not  yield  to  spiritual  censures,  was  imprisoned  on  the 
information  of  the  spiritual  judge  until  he  should  make  sub- 
mission. The  ecclesiastical  courts  were  thus  made  effective 
for  the  administration  of  justice,  to  the  detriment  of  their 
spiritual  character.  Judges  and  other  officials  were  secu- 
larized, being  frequently  clerks  in  minor  orders  only ;  the 
discipline  of  the  Church  degenerated  into  a  business  of 
police. 

The  legislation  of  the  Church  in  regard  to  marriage  was 
fairly  complete  before  the  codification  of  the  Canon  Law,  and 


148  OF  MARRIAGE  IN  CANON  LAW 

few  changes  of  importance  were  effected  during  the  Middle 
Ages.    The  Lateran  Council  of  the  year  1215,  however, 
drastically  reformed  the  current  practice  in  the  matter  of  the 
impediments  of  consanguinity  and  affinity.     From  the  sixth 
century  onward  there  was  an  increasing  tendency  to  look 
back  to  the  Mosaic  law  as  a  permanent  expression  of  the  will 
of  God,  those  provisions  which  seemed  to  conflict  with  this 
view  being  treated  as   prophetic   dispensations.     It   thus 
became  possible  to  acknowledge  a  Divine  Law,  distinct  from 
the  law  of  nature,  which  should  bind  only  the  covenanted 
people   of  God.    To  this  Divine   Law  were  referred  the 
impediments  in  question.     But  there  were  two  possible  ways 
of  reading  the  law.     The  prohibition  might  be  confined  to 
cases  expressly  mentioned  in  the  levitical  books,  perhaps 
with  the  addition  of  others  exactly  similar,  or  there  might  be 
found  some  general  law  which  could  be  applied  to  all  cases 
alike.     Both  methods  of  interpretation  were  used,  but  the 
latter  prevailed.    The  Church  had  previously  made  special 
prohibitions,  additional  to  those  set  up  by  the  laws  of  the 
Empire  ;   it  now  became  usual  to  rely  on  the  levitical  rule 
forbidding  a  man  to  have  carnal  knowledge  of  one  who  was 
"  near  of  kin  to  him."    We  have  seen  St.  Gregory  the  Great 
definitely  opposing  this  Divine  Law  to  the  laws  of  the  Roman 
Commonwealth.     But  to  apply  the  law  it  was  necessary  to 
determine  the  meaning  of  cognatio,  and  an  interpretation 
was  sought  from  'the  rules  of  succession  in  the  Civil  Law. 
According  to  these,  cognates  were  recognized  to  the  sixth 
degree,  or    in  some  cases  to  the  seventh,  and   thus   the 
kindred  with   whom  marriage   was  forbidden   included  all 
the   descendants   of   a   man's   sixth  or   seventh  ancestor. 
But  in  the  course  of  the  ninth  century  the  Latin  Church, 
while  adhering  to  the  seventh  degree  as  the  limit,  adopted  a 
new  method  of  computation,  known  as  Computus  Germanicus, 
which   greatly  extended  the  area  of  prohibition.     Such  a 


RESTRICTION   OF   IMPEDIMENTS  149 

law  of  exogamy  was  impracticable,  and  it  is  not  clear  whether 
consanguinity  in  the  more  remote  degrees  was  treated 
as  a  diriment  impediment.  The  practical  inconvenience  of 
the  rule  was  remedied  by  a  constitution  of  the  Lateran 
Council  limiting  the  prohibition  to  the  fourth  degree  colla- 
teral, and  making  the  impediment  in  all  cases  diriment.  It 
was  also  made  plain  that  consanguinity  arising  out  of  illicit 
connexions  had  the  same  effect  as  that  arising  out  of 
marriage. 

The  impediment  of  affinity,  derived  by  the  Christian 
Church  from  the  Mosaic  law,  declared  by  St.  Paul  to  be 
recognized  by  Gentiles  in  the  first  degree,1  but  carried  no  fur- 
ther in  the  Roman  civil  law,  was  logically  developed  in  the 
course  of  the  eighth  century  in  precise  agreement  with  that 
of  consanguinity.  It  was  not  based,  as  in  the  civil  law,  on 
the  entire  union  of  man  and  wife  effected  by  a  lawful  marri- 
age, but  on  the  bare  fact  of  carnal  copulation,  interpreted 
in  the  sense  of  St.  Paul's  saying  that,  "  he  that  is  joined  to  a 
harlot  is  one  body."  2  A  man  was  forbidden  to  marry  a 
woman  with  any  of  whose  kindred  to  the  seventh  degree  he 
might  have  had  unlawful  connexion.  Nor  was  this  all,  for 
the  more  artificial  affinities  recognized  by  the  Quinisext 
Council  passed  current  for  a  time  in  the  West  also,  and  a 
man  contracted  affinity,  not  only  with  those  of  his  wife's 
or  paramour's  blood,  but  also  with  those  of  her  proper 
affinity,  and,  further,  with  those  related  to  her  in  this  same 
fashion ;  a  fourth  kind  of  affinity  was  discovered  by  the 
ingenuity  of  theologians  to  exist  between  the  children  of  a 
widow  married  a  second  time  and  the  kindred  of  her  former 
husband.  These  refinements  were  tempered  to  the  fourth 
or  second  degree  ;  but  even  so,  in  a  lax  state  of  morals,  a 
man  would  be  surrounded  by  a  network  of  relations,  secret 

1  j  Cor.  v.  i,  8  Ibid.  vi.  15. 


150  OF  MARRIAGE  IN  CANON  LAW 

and  avowed,  which  made  lawful  marriage  almost  impossible 
for  him  ;  nor  was  it  easy  to  ascertain  that  in  seeking  dispen- 
sation he  had  set  out  all  the  particulars  requisite  for  its 
validity.  The  Lateran  Council  made  short  work  of  this 
intolerable  state  of  things,  and  of  the  rich  harvest  for  prac- 
titioners in  the  courts  resulting  from  it,  by  sweeping  away  the 
artificial  kinds  of  affinity  and  by  reducing  the  impediment  of 
natural  affinity,  like  that  of  consanguinity,  to  the  fourth 
degree  collateral. 

These  reforms  involved  an  important  corollary.  It  was 
not  pretended  that  the  Church  could  modify  the  Divine 
Law,  therefore  the  Council  implicitly  condemned  the  pro- 
position that  the  abrogated  impediments  were  of  divine 
law.  But  it  also  weakened  the  contention  that  the  levitical 
impediment  of  cognatio  in  ^general  was  of  divine  law ;  for 
how  could  the  Church,  in  that  case,  vary  by  an  arbitrary 
decree  the  limit  of  kinship  ?  A  return  to  the  recognition 
of  the  law  of  nature  as  the  only  divine  law  of  marriage 
was  not  then  possible,  and  those  who  held  to  a  separate  ius 
divinum  were  constrained  to  limit  the  impediments  of  this 
law  to  the  cases  specifically  mentioned  in  the  Mosaic  books, 
or  to  draw  artificial  distinctions  between  those  very  cases. 
There  were  consequent  disputes  which  affected  the  practice 
of  dispensation,  and  which  set  all  Christendom  by  the  ears 
when  Henry  VIII  of  England  sought  relief  for  a  carefully 
burdened  conscience. 

Of  minor  legislative  achievements  of  the  Church  it  may 
suffice  to  mention  three  :  the  continuous  attempt  to  put 
down  clandestinity,  the  classification  of  impediments,  and 
the  regulation  of  procedure. 

Under  the  last  head  should  be  observed  the  rule  that  a 
marriage  de  facto  contracted,  even  if  a  diriment  impediment 
be  known  to  have  existed,  must  be  accounted  good  until 
sentence  of  nullity  has  been  pronounced  by  a  competent 


CLASSIFICATION  OF   IMPEDIMENTS          131 

court.  Moreover,  since  process  was  always  pro  salute  ani- 
mae,  with  the  express  purpose  of  putting  a  stop  to  unlawful 
cohabitation,  no  proceedings  could  be  instituted  in  foro 
externo  after  the  death  of  either  party  had  brought  the  wrong 
doing  to  an  end.  Canonists  commonly  trace  this  rule  back 
to  the  twenty-fifth  canon  of  the  Gallic  Council  of  Agde,  A.D. 
506,  but  the  thread  of  connexion  is  slender.  The  council 
forbad  men  to  put  away  their  wives  privately,  on  the  ground 
of  an  alleged  impediment,  without  referring  the  matter  to 
the  ecclesiastical  authorities.  The  later  rule  would  cover 
such  a  case,  but  it  went  further,  and  was  a  vindication  rather 
of  the  majesty  of  law  than  of  the  sanctity  of  marriage.  It 
had  considerable  importance  as  affecting  the  legitimacy  of 
children,  who  could  not  be  put  in  danger  of  bastardy  after 
the  death  of  one  parent.  Against  the  obvious  merits  of 
the  rule  must  be  set  the  fact,  abundantly  proved  in  experi- 
ence, that  by  the  skilful  management  of  a  collusive  suit,  pro- 
longed if  necessary  by  appeals  on  interlocutory  decrees,  a 
notoriously  unlawful  marriage  might  be  upheld  until  death 
put  an  end  to  the  procedure.  In  this,  as  in  other  ways,  the 
intricacy  of  the  marriage  law  and  the  cumbersomeness  of 
canonical  process  gave  an  immense  advantage  to  wealth 
unscrupulously  used. 

The  distinction  and  classification  of  impediments,  partly 
by  positive  enactment,  partly  by  scientific  determination, 
is  one  of  the  chief  departments  of  Canon  Law.  We  have 
seen  that  prohibition  of  marriage  in  certain  circumstances 
was  regarded  as  within  the  province  of  the  Church  from  the 
beginning,  but  the  right  to  declare  a  forbidden  marriage 
null  and  void,  or  in  other  words  to  create  a  diriment  impedi- 
ment, was  slowly  and  reluctantly  alleged.  Reliance  was 
placed  at  first  on  a  reading  of  the  Divine  Law  which  could 
hardly  be  maintained ;  an  impediment  so  established  was 
by  an  afterthought  put  on  another  basis  when  juristic  studies 


152  OF  MARRIAGE  IN  CANON  LAW 

made  a  better  analysis  possible.  Impediments  diriment 
and  obstructive  were  then  clearly  distinguished,  and  the 
power  of  the  legislature  to  impose  a  prohibition  of  either 
kind  was  recognized.  What  was  at  first  merely  disciplinary 
changed  its  character  when  the  discipline  of  the  Church 
came  to  be  employed  for  the  legal  regulation  of  marriage. 
It  is  no  part  of  my  task  to  deal  in  detail  with  the  legislation 
of  the  Church  about  impediments  and  dispensations,  but 
it  may  be  well  to  note  as  an  illustration  of  method  the  treat- 
ment of  the  impediment  of  tempus  feriatum.  In  the  fourth 
century  the  Council  of  Laodicea  had  forbidden  the  cele- 
bration of  marriages  in  Lent.  The  meaning  is  not  quite 
clear  ;  birthdays  are  coupled  with  marriages,  and  the  canon 
may  look  rather  to  the  usual  festivities  of  the  occasion  than 
to  the  actual  contract.1  There  is  no  ground  for  supposing 
the  prohibition  to  be  a  novelty.  Yvo  of  Chartres  and  Gra- 
tian  cite  a  Council  of  Lerida  as  extending  it  to  the  whole 
period  from  Septuagesima  to  the  Octave  of  Easter,  and 
making  the  same  rule  for  Advent  and  Christmastide,  and 
for  the  three  weeks  preceding  the  feast  of  St.  John  the 
Baptist.  What  is  here  forbidden  is  nuptias  celebrare,  but 
it  is  added,  "  si  factum  fuerit,  separentur,"  which  seems  to 
imply  that  the  contracting  of  marriage  at  these  times  is 
forbidden,  and  that  the  impediment  is  diriment.2  This 
council  cannot  be  traced  ;  no  such  canon  was  adopted  by 


1  Can.  52.  Ou  Set  eV  T€<r(rapoKocrn5  ya/xovs  rj  ycveflXta 
On  y€ve'0Xtov  see  Suicer.  The  reference  is  not  to  the  natalitia  of 
martyrs,  since  they  are  provided  for  in  the  canon  immediately  pre- 
ceding. Hefele  thought  that  the  Emperor's  birth-day  festivities 
were  intended.  It  may  possibly  be  the  anniversary  celebration 
of  his  accession  (yeVvi/cris)  ;  or,  since  the  word  was  certainly  used 
of  the  Encaenia  of  a  city,  the  dedication  festival  of  a  Church  may 
be  intended.  But  the  association  with  marriage  points  rather  to  a 
private  festivity. 

*  Yvo,  p.  8,  c.  142  ;    Gratian,  caus.  33,  qu.  4. 


TEMPUS  FERIATUM  153 

the  Council  of  Lerida  in  524,  and  in  the  year  572  the  Council 
of  Lugo,  also  in  Spain,  was  content  with  the  rule  of  Laodicea, 
as  rendered  by  Martin  of  Braga.1  Everything  included  in 
the  Decretum  of  Gratian  had  some  weight  in  the  formation 
of  the  practice  of  the  Church,  but  there  is  no  trace  of  any 
attempt  to  treat  marriages  contracted  in  defiance  of  this 
prohibition  as  null,  and  the  prohibit  ion  itself  was  interpreted 
as  concerned  only  with  the  solemnities  of  marriage.  So  it 
was  ultimately  defined  by  the  Council  of  Trent.2  These 
solemnities  are  enumerated  in  the  Rituale  Romanum  :  "  nup- 
tias  benedicere,  sponsam  traducere,  nuptialia  celebrare 
convivia."  It  follows  that  marriage  may  be  contracted 
within  the  seasons  of  prohibition,  but  the  parties  are  for- 
bidden to  begin  cohabitation  until  they  have  afterwards 
received  the  nuptial  benediction.  Such  is  the  general  law. 
There  are,  however,  local  rules,  as  in  the  diocese  of  Bruges, 
which  forbid  the  contracting  of  marriage  at  these  times.3 
This  example  may  serve  to  show  the  purely  disciplinary 
character  of  ecclesiastical  legislation  about  obstructive 
impediments.  To  invalidate  a  marriage  is  another  matter,  and 
it  is  here  that  the  laws  of  the  Church  grew  to  portentous 
bulk  and  intricacy.  Diriment  impediments  of  the  natural 


1  Mart.    Bracar.,    Cottectio   Oriental.   Can.   48. 

2  "  Antiquas     sollemnium    nuptiarum     prohibitiones     diligenter 
ab  omnibus  observariS.  Synodus  praecipit."     Sess.  xxiv.  cap.  10. 

3  De  Smet,  op.  cit.,  p.  300.     It  has  been    thought  that  a  similar 
rule  once  held  in  England.     The  latest  authority  that  I  can  find  is 
in  the  Visitation  Articles  of  Robert  Booth,  Archdeacon  of  Durham, 
circ.  1712,  printed  in  the  Appendix  to  the  Report  of  the  Ritual 
Commission,    1868,   p.   682.     But   Lyndwood,   cited  by  the  Arch- 
deacon, is  clear  that  the  prohibition  does  not  extend  to  the  con- 
tracting of  marriage,  apart  from  the  solemnities.     The  contracting 
of  marriage  without  the  nuptial  benediction,  however,  being  strictly 
forbidden,  the  rule  does  in  fact  prevent   contracting  in  facie  eccle- 
siae  except  by  dispensation. 


154  OF  MARRIAGE   IN  CANON  LAW 

law  were  recognized,  and  their  juridical  treatment  was 
elaborately  regulated.  They  were  classified  in  two  kinds  : 
those  affecting  the  validity  of  the  contract — insanity, 
force  or  fear,  and  mistaken  identity  ;  and  those  rendering 
certain  persons  incapable  of  intermarrying — immaturity, 
impotence,  existing  marriage,  and  consanguinity  or  affinity 
within  certain  degrees.  In  respect  of  all  these,  the  legisla- 
ture had  but  two  functions  ;  to  ascertain  the  precise  limits 
of  the  prohibition,  and  to  determine  how  far  contingent 
dispensation  might  be  allowed.  Diriment  impediments  of 
ecclesiastical  law,  on  the  other  hand,  were  subject  to  con- 
tinual fluctuation.  Some  were  adopted,  as  we  have  seen 
in  the  case  of  consanguinity  and  affinity,  from  a  supposed 
divine  law,  and  afterwards  reduced  to  their  true  standing. 
The  impediment  of  disparitas  cultus,  nullifying  the  marriage 
of  a  Christian  with  an  unbeliever,  was  derived  from  St. 
Paul's  teaching,  and  its  diriment  effect  was  not  based  on 
any  conciliar  constitution  or  decretal,  but  only  on  general 
custom.  It  was  never  extended  in  the  West,  as  in  the 
Eastern  Church,  to  cover  the  case  of  heretics. 

A  vow  of  continence,  taken  in  the  cause  of  religion,  may 
be  considered  an  impediment  to  marriage  even  by  the  law 
of  nature,  but  the  Western  Church  was  slow  to  regard  it  as 
nullifying  a  marriage  contracted  de  facto.  The  weighty 
judgment  of  St.  Augustine  was  against  such  a  development. 
He  advocated  a  stern  treatment  of  those  who,  vowed  to  con- 
tinence, afterwards  married,  but  he  refused  to  treat  this 
vow  as  if  it  were  a  marriage  to  Christ,  precluding  any  other 
union,  nor  would  he  allow  those  who  thus  fell  away  to  be 
reckoned  adulterous.  With  a  characteristic  distinction  he 
said  that  their  breach  of  vow  was  an  evil  even  worse  than 
adultery,  but  their  marriage,  as  marriage,  was  good.1  In- 
deed, there  seems  to  be  no  text  plainly  declaring  such  mar- 
*  De  Bono  Viduitatis,  9-11, 


VOWS  AND  HOLY  ORDERS  155 

riages  null  before  the  seventh  canon  of  the  second  Lateran 
Council :  "  Huiusmodi  copulationem,  quam  contra  ecclesias- 
ticam  regulam  constat  esse  contractam,  matrimonium  non 
esse  censemus."  Much  confusion  ensued  on  this,  since 
vows  of  continence  were  many  and  various,  until  Boniface 
VIII  expressly  restricted  the  operation  of  the  law  to  the 
case  of  vows  solemnly  taken  in  an  approved  religious  com- 
munity. 

When  marriage  was  first  forbidden  to  those  in  Holy 
Orders  does  not  appear,  but  the  prohibition  was  undoubt- 
edly general  at  the  time  of  the  first  Nicene  Council,  where 
it  seems  to  have  been  in  debate  whether  even  those  married 
before  ordination  should  not  be  interdicted  from  the  use  of 
marriage.  The  story  of  the  intervention  of  Paphnutius 
has  been  discredited,  but  without  good  reason,  and  it  is 
clear  that  the  abstention  from  marriage  enjoined  by  the 
Council  of  Illiberris  in  the  year  305  was  no  rule  of  the  Eastern 
Churches  at  any  subsequent  date.  But  the  whole  trend  of 
Western  thought  was  for  some  ages  in  the  direction  of  the 
stricter  obligation,  and  when  the  contrary  practice  had 
almost  become  established  during  a  period  of  general  dis- 
order, the  reform  preached  by  St.  Peter  Damian  in  the 
eleventh  century  was  accurately  represented  as  a  revival 
of  neglected  discipline.  The  frequency  with  which  married 
men  were  raised  with  credit  to  the  highest  places  in  the 
Church  is  illustrated  by  the  tragic  history  of  the  family  of 
Hadrian  II,  himself  the  son  of  a  bishop,  whose  wife  and 
daughter  were  murdered  by  the  husband  of  the  latter,  also 
the  son  of  a  bishop  of  great  reputation.  It  was  in  the  time 
of  this  married  Pope  that  a  provincial  Council  at  Worms 
found  it  necessary  to  renew  the  rule  of  abstention.1  After 


1  Can.  9.     "  Placuit  ut  episcopi,  presbyteri,  diaconi,  subdiaconi, 
abstineant  se  ab  coniugibus,  et  non  generent  filios.     Quod  si  hoc 


156  OF  MARRIAGE  IN  CANON  LAW 

the  unbridled  excesses  of  the  tenth  and  eleventh  centuries, 
the  renewed  enforcement  of  this  rule  might  well  seem  to  be 
necessary  for  bare  decency  in  the  Church,  and  it  could  be 
secured  only  by  the  entire  removal  of  married  men  from 
the  sacred  ministry.  Thus  marriage  and  ordination  came 
to  be  regarded  as  sacraments  mutually  exclusive.  But 
even  in  the  heat  of  that  fierce  conflict,  when  married  priests 
and  bishops  were  on  all  sides  being  degraded  and  deposed, 
there  is  no  trace  of  any  theory  or  practice  invalidating  a 
marriage  contracted  by  them,  until  a  decretal  of  Urban  II 
in  the  year  1090  suggests  what  was  thirty-three  years  later 
enacted  in  the  first  Lateran  Council.1  Even  then  it  was 
separation  only  that  was  ordered,  and,  seven  years  later 
again,  Innocent  II  at  Clermont  reverted  to  the  older  prac- 
tice.2 Abelard,  in  Sic  et  Non,  set  out  the  contradictions 
current  in  his  time.  In  the  year  1139,  the  second  Lateran 
Council  put  clerks  in  holy  orders  on  the  same  footing  as 
monks,  declaring  their  attempted  marriages  void.3  Yet 
Gratian  almost  contemporaneously  affirmed  both  the  vali- 
dity of  marriage  contracted  by  a  deacon,  and  the  lawfulness 
of  cohabitation  if  the  sacred  ministry  were  abandoned.  Not 
even  a  vow  of  chastity,  he  averred,  taken  at  the  time  of 

decretum  viola verint,  ab  honoreclericatus  pellantur."  The  chronology 
of  Hadrian  I  is  confused,  but  he  seems  to  have  been  twenty-five 
years  a  priest,  and  some  time  longer  in  holy  orders,  when  elected 
Pope  in  the  year  867.  As  his  daughter  was  not  then  married,  it  is 
difficult  to  believe  that  she  was  born  before  his  ordination.  Did 
he  follow  the  Greek  rule,  and  was  it  because  of  unwillingness  to 
separate  from  his  wife  that  he  twice  refused  the  episcopate  ?  It 
seems  not  improbable. 

1  Can.  21.     "  Contracta  quoque  matrimonia  ab  huiusmodi  per- 
sonis  disiungi." 

2  Cone.  Claromont.    A.D.  1130  ;  can.  4.     "  Decrevimus  ut  ei  qui 
a  subdiaconatu  et  supra  uxores  duxerint,  aut  concubinas  habuerint, 
officio  atque  beneficio  ecclesiastico  careant." 

3  Vide  supra,  p.  155. 


CONSANGUINITY  AND  AFFINITY  157 

ordination,  could  nullify  the  sacrament  of  a  subsequent 
marriage.1  This  vow  of  continence  had  been  for  some 
time  imposed  by  reforming  bishops,  and  was  expressly 
ordered  by  a  French  Council  at  Bourges  in  the  year  1031. 
The  practice  did  not  continue,  but  Gratian's  successors 
deduced  from  the  fact  of  ordination  under  the  existing  law 
an  implied  vow,  on  which,  disagreeing  with  him,  they  based 
a  conclusion  of  nullity  of  marriage.  Boniface  VIII,  in  his 
decretal  restricting  the  impediment  of  votum  to  Vows 
solemnly  taken,  ranked  with  these  the  vow  of  continence 
expressed  or  implied  in  the  acceptance  of  Holy  Orders.  It 
is  still  debated  by  canonists  whether  it  is  this  or  the  bare 
fact  of  ordination  which  constitutes  the  diriment  impedi- 
ment. 

We  have  already  seen  how  the  natural  impediments  of 
consanguinity  and  affinity  were  by  turns  extended  and  re- 
stricted down  to  the  time  of  the  third  Lateran  Council.  A 
further  modification  was  introduced  when  the  Popes  of  the 
fifteenth  century  began  to  dispense  in  regard  to  degrees  of 
kinship  which  had  formerly  been  considered  to  come  within 
the  prohibitions  of  the  Divine  Law.  It  was  clear  that  either 
the  extent  of  the  Divine  Law  must  be  narrowed,  or  a  power 
of  dispensation  must  be  recognized  exceeding  all  that  had 
been  previously  known  in  the  Western  Church.  A  reform 
of  the  Council  of  Trent,  fixing  a  limit  for  affinity  by  illicit 
connexion  different  from  that  retained  where  the  connexion 
was  by  marriage,  seemed  to  draw  this  impediment  entirely 
into  the  province  of  ecclesiastical  law. 

The  impediment  of  cognatio  spiritualis  was  of  this  charac- 

1  Dist.  xxvii.  cap.  i.  "Si  vero  diaconus  a  minis terio  cessare 
voluerit,  contracto  matrimonio  licite  potest  uti.  Nam  etsi  in 
ordinatione  sua  castitatis  votum  obtulerit,  tamen  tanta  est  vis  in 
sacramento  coniugii,  quod  nee  violatione  voti  potest  dissolvi  con- 
iugium  ipsum." 


158  OF  MARRIAGE^  IN  CANON  LAW 

ter  from  the  first.  The  rule  of  the  Quinisext  Council  was 
not  a  new  thing,  for  its  appearance  in  the  legislation  of 
Justinian  shows  that  it  must  have  been  long  current  in  the 
Church.  This  artificial  kinship  was  for  a  time  greatly  ex- 
tended, in  the  West  as  in  the  East,  but  was  afterwards 
gradually  restricted  to  the  minister  of  baptism  or  confirma- 
tion, the  sponsors  in  either  case,  and  the  parents  of  the 
recipient  of  the  sacrament.  It  has  enriched  the  English 
language  with  the  word  gossip. 

The  impediment  of  puUica  honestas  arose  from  espousals 
per  verba  de  futuro,  which,  without  receiving  the  character 
of  inchoate  marriage  attaching  to  them  in  Jewish  law  and 
the  practice  of  Eastern  Christendom,  were  held  to  set  up 
such  a  relation  between  the  parties,  that  on  the  ground  of 
public  decency  the  rules  concerning  affinity  should  apply. 
The  same  consideration  touches  with  even  greater  force  a 
marriage  duly  contracted  (matrimonium  ratum)  but  not 
consummated,  though  here  also  no  true  affinity  was  set  up 
by  carnal  union.  There  were  prohibitions  of  this  kind  in 
the  Roman  law,  based  on  the  maxim,  "  non  solum  quid 
liceat  considerandum  est,  sed  quid  honestum  sit,"  but  the 
impediment  does  not  appear  in  Canon  Law  before  the 
eleventh  century.  It  played  an  important  part  in  the 
intricate  negotiations  about  the  nullification  of  the  first 
marriage  of  Henry  VIII,  for  whom  it  was  pleaded  that  his 
marriage  with  Katharine  of  Arragon  was  barred  in  this 
way,  even  if  her  marriage  with  his  brother  Arthur  was  not 
consummated. 

The  impediment  of  crime  arose  from  adultery,  or  from 
the  murder  of  husband  or  wife,  committed  under  promise 
of  future  marriage.  The  parties  to  such  a  crime  were  in  the 
ninth  century  at  latest  rendered  incapable  of  intermarrying. 

The  existence  of  these  many  diriment  impediments  pro- 
duced two  inevitable  effects.  On  the  one  hand,  there  was 


EFFECT  OF  DISPENSATION  159 

a  continual  increase  of  the  practice  of  dispensation.  A 
stationary  population,  compelled  to  look  for  partners  in 
marriage  within  narrow  limits  of  neighbourhood,  was  en- 
tangled in  a  complete  network  of  prohibitions,  and  a  genuine 
necessity  made  much  relaxation  necessary.  But  dispen- 
sation, however  justifiable,  is  the  worst  enemy  of  law.  The 
Western  canonists,  who  upheld  in  the  letter  the  strictest 
observance  alike  of  the  natural  law  and  of  human  law  in 
regard  to  marriage,  indirectly  broke  down  all  the  safeguards 
of  law.  They  never  moved  a  hair's  breadth  from  the  doc- 
trine of  the  indissolubility  of  marriage.  They  insisted  with 
so  much  severity  on  the  observance  of  the  duties  of  the 
married  state,  that  Alexander  III  disallowed  refusal  to  co- 
habit even  with  a  leper.  But  the  intricacy  of  the  law  re- 
garding impediments,  the  strictness  with  which  it  was 
applied,  and  the  frequent  occurrence  of  legal  flaws  in  dis- 
pensations granted  and  received  not  always  in  good  faith, 
made  an  immense  number  of  marriages  precarious.  A 
marriage  could  not  be  dissolved,  but  it  could  often  be  an- 
nulled. The  process  pro  salute  animae  afforded  material 
for  a  chicanery  by  which,  with  the  help  of  evidence  that 
was  seldom  sufficiently  verified,  almost  any  inconvenient 
husband  or  wife  could  be  repudiated.  Facilities,  just  and 
wholesome  in  themselves,  for  legitimating  natural  children, 
did  away  with  the  main  hindrance  to  these  nullifications, 
since  the  children  born  of  a  marriage  so  voided  were  not 
necessarily  reduced  to  the  standing  of  bastards.  This  again 
reacted  on  the  public  estimate  of  marriage,  which  was 
hardly  to  be  distinguished  in  its  effects  from  an  avowed 
concubinage.  It  cannot  be  denied  that  the  medieval  Canon 
law  failed  miserably  as  guardian  of  the  holy  estate.  Its 
outcome  is  illustrated  on  some  of  the  best  known  pages  of 
history  by  the  case  of  Henry  VIII,  and  to  represent  as 
champions  of  morality  and  of  the  honour  of  marriage  the 


i6o  OF  MARRIAGE  IN  CANON  LAW 

Popes,  a  Medici  and  a  Farnese,  who  rejected  his  plea,  is  not 
less  false  than  to  picture  the  king  as  moved  only  or  chiefly 
by  the  questioning  of  a  sensitive  conscience.  He  desired, 
partly  on  grounds  of  public  policy,  the  annulment  of  his 
marriage  ;  grounds  were  alleged  which  it  was  common  form 
to  allow  ;  the  facility  with  which  the  English  clergy  and 
the  English  people  were  detached  from  their  secular  de- 
pendence on  the  Papacy  is  explicable  only  by  their  anger 
at  seeing  a  customary  judgment  of  the  Papal  Court,  affecting 
the  succession  to  the  Crown,  withheld  under  the  pressure  of 
a  foreign  power.  Because  Clement  VII  was  supposed  to 
act  at  the  dictation  of  Charles  V  his  jurisdiction  was  defied. 
But  this  would  have  been  impossible,  had  not  the  whole 
administration  of  the  marriage  law  become  vitiated  at  the 
fountain  head.  When  the  legitimated  bastard  of  a  Pope 
could  marry  the  bastard  daughter  of  a  King  of  Arragon,  with 
a  duchy  for  dowry,  and  when  their  son  could  marry  the 
bastard  daughter  of  a  Spanish  archbishop,  to  become  the 
father  of  Saint  Francis  Borgia — when  this  was  accepted  as 
a  natural  state  of  things  causing  no  scandal,  marriage  might 
seem  to  be  on  the  way  to  become  an  extinct  institution. 
Yet  the  miserable  story  ends  in  holiness,  and  the  indes- 
tructible vitality  of  the  Gospel  stands  revealed. 

The  time  was  ripe  for  reform.  The  shock  of  alarming 
schism  hastened  it.  Reforms  were  effected  by  the  Council 
of  Trent,  one  of  which  demands  careful  consideration. 

Marriage  could  be  validly  contracted,  as  we  have  seen, 
with  the  slenderest  formalities,  without  any  public  function, 
and  without  religious  rites.  But  the  Church  had  from  very 
early  days,  if  not  absolutely  from  the  beginning,  contended 
for  a  public  and  reverent  ministration,  alike  of  espousals 
and  of  nuptials.  At  what  date  it  was  made  a  matter  of 
discipline  to  insist  on  the  contracting  of  marriage  in  facie 
ecclesiae  cannot  be  ascertained.  The  practice  was  general 


CLANDESTINITY  161 

in  Tertullian's  day,  but  the  vehemence  of  his  language  seems 
to  imply  that  it  was  not  as  strictly  pressed  as  he  could  wish, 
and  he  may  have  declared  no  more  than  his  personal  opinion 
when  he  said  that  a  clandestine  marriage  might  be  reckoned 
no  better  than  fornication.1  The  nuptials,  rather  than  the 
espousals,  seem  for  some  time  to  have  engaged  the  attention 
of  the  Church,  cohabitation  before  the  reception  of  a  ritual 
benediction  being  severely  condemned.  When  the  whole 
administration  of  marriage  came  under  hierarchical  control, 
both  espousals  de  futuro  and  the  contract  per  verba  de  praesenti 
were  required  to  be  public  in  facie  ecclesiae,  and  censures 
were  imposed  on  those  who  began  cohabitation  before  the 
completion  of  the  nuptial  solemnities.  Clandestinity  was 
then  regarded,  in  a  somewhat  improper  sense,  as  an  impedi- 
ment ;  and  the  word  is  correctly  used  if  it  be  understood 
that  the  omission  of  any  prescribed  formality,  including 
the  publication  of  banns,  renders  unlawful  the  next  step 
towards  the  completion  of  the  matrimonial  contract.  In 
the  East,  as  we  have  seen,  Church  and  State  agreed  to 
follow  the  Jewish  precedent  of  making  clandestine  marriages 
void,  but  in  the  homogeneous  community  of  Western 
Christendom  this  was  not  done.  Only  by  the  Council  of 
Trent  was  clandestinity  made  a  diriment  impediment.  The 
change  was  contested  on  the  ground  that  it  affected  the 
substance  of  the  sacrament,  which  was  the  mere  consent  of 
the  parties  ;  but  this  objection  called  forth  the  obvious 
answer  that  it  would  apply  equally  to  the  creation  of  other 
diriment  impediments  iure  ecclesiastico,  for  which  there 
were  abundant  precedents. 

A  graver  objection  to  what  was  thus  done  may  be  found 
in  its  practical  consequences.  The  Tridentine  reform  re- 

1  De  Pudic.,  4.  "  Penes  nos  occultae  quoque  coniunctiones,  id 
est,  non  prius  apud  ecclesiam  professae  iuxta  moechiam  et  fornica* 
tionem  iudicari  periclitantur." 

M.C.S.  M 


162  OF  MARRIAGE  IN  CANON  LAW 

quired  a  marriage  to  be  contracted  in  the  presence  of  the 
parish  priest  of  one  of  the  parties  with  two  other  witnesses. 
Failing  this,  the  marriage  was  to  be  null.  For  the  validity 
of  the  marriage  the  priest  was  required  only  as  witness  ; 
no  ritual  was  needed,  and  no  official  act.  A  marriage  might 
be  clandestine  in  all  other  respects  ;  there  might  be  no  pub- 
lication of  banns,  no  previous  notification  of  any  kind  ;  the 
parties  might  at  any  moment  spring  upon  the  parish  priest 
and  two  other  witnesses,  declaring  themselves  man  and 
wife  ;  the  marriage  would  be  valid.  Such  is  the  purport  of 
the  decree  Tametsi.  But  the  strict  requirement  of  the  in- 
tervention of  the  parochus,  or  of  some  other  priest  deputed  by 
him,  especially  when  construed  with  the  words  Ego  coniungo 
vos  of  the  Roman  ritual,  encouraged  the  idea,  foreign  to  all 
theology,  that  marriage  is  in  some  sort  effected  by  the  act 
of  an  official ;  and  this  idea  became  fruitful  of  consequences. 
This  was  the  last  attempt  at  canonical  legislation  for 
Western  Christendom  as  a  whole.  The  Respublica  Chris- 
tiana was  already  in  dissolution.  Already  it  was  recognized 
that  decretals  and  conciliar  constitutions  would  not  run  as 
generally  as  of  old  ;  there  was,  no  doubt,  a  hope  that  the 
crumbling  unity  of  the  Church  would  be  restored,  but  there 
were  obvious  difficulties  at  the  moment,  and  it  was  expressly 
provided  that  the  new  decree  should  take  effect  only  in 
those  regions  for  which  it  might  be  specially  promulgated. 
For  the  first  time  in  seven  hundred  years  or  more,  the  unity 
of  the  marriage  law  of  Europe  was  avowedly  broken.  It 
was  inevitable,  for  Europe  was  in  labour  of  the  Modern  State. 


CHAPTER   V 

Of  Marriage   in    the    Modern    State 

BY  the  Modern  State  I  understand  that  organization 
of  Civil  Society  which  has  supervened  upon  the  dis- 
solution of  the  medieval  system  in  Western  Europe.  In 
a  sense,  this  is  a  return  to  an  older  order,  but  its  form  is 
partly  determined  by  the  discarded  ideas,  and  still  more 
by  their  impress  on  laws  and  institutions.  That  impress 
has  been  carried  to  the  communities  of  the  new  world 
formed  by  emigration  from  Europe,  and  all  the  resulting 
states  differ  in  certain  characteristics  from  those  of  Eastern 
Europe  which  have  never  received  it.  In  the  East,  the 
distinction  of  Church  and  State  as  two  separate  organiza- 
tions at  no  time  passed  out  of  sight ;  the  unity  of  the  Church 
was  insisted  upon,  though  less  strenuously  than  in  the 
West,  but  the  conception  of  an  unitary  world-state,  in  spite 
of  imperial  traditions,  never  arose  ;  the  Basileus  of  Con- 
stantinople, though  he  affected  to  despise  the  Reges  of 
Italy  or  Germany,  treated  on  equal  terms  with  his  neighbours 
to  the  North  and  to  the  East.  In  the  West  a  vision  of 
unity  took  possession  of  man's  minds,  and  dominated  their 
political  action.  The  Civitas  Dei  was  one,  and  all  mankind 
potentially  entered  into  it ;  Pope  and  Emperor  were  powers 
therein  almost  co-ordinate,  kings  and  dukes  and  the  like 
were  powers  indeterminately  subordinate.  If  Boniface 
VIII  claimed  the  supreme  control  of  the  two  swords,  one 

of  which  he  delegated  to  temporal  wielders,  the  partisans 

iw 


164     OF  MARRIAGE  IN  THE  MODERN  STATE 

of  the  empire  or  of  the  French  monarchy  claimed  on  the 
other  hand  no  more  than  independent  authority  iure  divino 
for  their  chief,  without  denying  equal  or  even  superior 
authority  to  the  Pope. 

The  revival  of  the  study  of  Roman  law  in  the  twelfth 
century  brought  into  the  existing  system  a  savour  that 
was  not  Christian,  a  conception  of  unity  that  was  based 
less  on  human  nature  than  on  legal  citizenship.  The  advent 
of  Aristotle  to  the  Schools  of  Paris  a  hundred  years  later 
was  even  more  momentous.  The  Politics  became  a  text- 
book alike  of  theologians  and  of  lawyers,  and  the  authority 
of  the  philosopher  was  irresistible.  The  word  civitas, 
the  word  societas,  took  a  new  meaning,  based,  with  insuffi- 
cient historical  knowledge,  on  that  of  the  TrdXt?  avrdp/ctj^ 
in  Greek  philosophy.  The  communitas  perfecta  became  an 
object  of  critical  speculation.  The  existence  of  this  form 
of  society  was  assumed,  because  Aristotle  assumed  it.  But 
where  was  such  a  society  to  be  found  in  actual  fact  ?  Men 
stumbled  between  the  sublime  ideal  of  a  heavenly  citizenship 
common  to  all  mankind,  and  a  confused  mass  of  local  juris- 
dictions. There  emerged  the  conception  of  a  commune 
or  of  a  lord  acknowledging  no  temporal  overlord,  where 
the  necessary  independence  seemed  to  be  found.  Jealous 
attempts  at  such  independence  called  forth  jealous  asser- 
tions of  suzerainty,  but  political  thought  jumped  with 
individual  ambitions,. and  the  segregation  of  States  began. 
The  empire  sank  to  the  position  of  one  among  many.  But 
unity  survived  on  the  spiritual  side,  plenitudo  potestatis  being 
vested  in  the  Pope.  When  the  King  of  England  declared 
that  he  acknowledged  neither  temporal  overlord  nor  spiritual, 
the  foundations  were  cast  down. 

The  imperialists  of  the  fourteenth  century  were  not  in 
this  line  of  thought.  William  of  Ockham  and  Marsiglio 
of  Padua  were  still  concerned  with  the  relations  of  the 


THE  IMPULSE  OF  THE  REFORMATION     165 

spiritualty  and  the  temporalty  within  the  unitary  Society. 
Their  essential  contention  was  that  the  legislative  function 
was  vested  in  the  temporalty  ;  precisely,  they  taught 
that  the  multitude  had  power  to  make  its  own  laws,  this 
power  being  ordinarily  delegated  to  Caesar.  Wickliff 
applied  the  same  teaching  to  English  conditions  ;  but  he 
confused  the  issue  by  proposing  details  of  legislation  which 
were  unacceptable  ;  when  Henry  VIII  wished  to  make 
practical  politics  of  these  theories,  he  leaned  not  on  their 
native  exponent  but  on  Marsiglio,  of  whose  Defensor  Pads 
he  procured  an  English  translation. 

The  fever  of  the  Reformation  brought  matters  to  a  head. 
Perhaps  the  most  honourable  part  of  Luther's  agitation 
was  his  revolt  against  the  existing  administration  of  the 
Canon  Law,  notably  in  regard  to  marriage.  His  burning 
of  the  Corpus  luris  at  Wittenberg  was  a  dramatic  sequel 
to  what  he  had  written  of  the  Babylonish  Captivity.  But 
he  had  nothing  to  put  in  the  place  of  what  he  discarded, 
and  in  his  system  the  Church  as  an  organized  society  may 
be  said  to  disappear.  A  one-sided  conception  of  primitive 
Christianity  was  made  the  standard  of  practice  :  Sohm  is 
the  true  Lutheran.  The  great  juristic  revolution  effected 
by  the  Reception  of  the  Roman  civil  law  throughout 
Germany,  and  the  ingenious  identification  of  the  local 
Furst  with  the  Princeps,  completed  this  work,  and  the 
speculations  of  Marsiglio  were  outdone.  So  far  as  the 
Church  retained  any  power  of  action,  it  was  reduced  to  the 
function  of  preaching,  of  declaring  the  revealed  will  of  God 
of  guiding  the  conscience  of  rulers  ;  all  law  was  civil  law, 
even  in  regard  to  the  regulation  of  religious  practices.  The 
Landeskirche  was  the  inevitable  result.  When  the  Protes- 
tant States  of  Germany  had  struggled  into  partial  or  complete 
independence,  they  inherited  no  conflict  of  Church  and  State, 
because  the  Church,  as  a  body  politic,  was  annihilated. 


166     OF   MARRIAGE  IN  THE  MODERN  STATE 

Not  very  different  was  the  effect  of  the  Helvetic  reforma- 
tion ;  but  here  some  shadow  of  the  medieval  polity  remained. 
At  Zurich  and  Basel  the  temporal  magistracy  took  charge 
of  the  unitary  community,  reducing  the  ministers  of  the 
Word  and  the  Sacraments  to  a  subordinate  position.  At 
Geneva,  under  the  guidance  of  Calvin,  things  took  a  different 
turn.  Calvin  was  a  jurist  of  the  Schools  before  he  became 
a  theologian ;  in  the  one  capacity  he  was  drawn  to  the 
conception  of  the  sovran  State,  in  the  other  he  achieved 
a  clear  idea  of  the  Church.  A  better  exegete  than  Luther, 
who  was  dominated  by  a  single  thought,  he  saw  that  the 
canonical  books  of  the  New  Testament  imply  the  existence 
of  the  Church  as  a  formed  society ;  his  peculiar  doctrine 
of  the  Invisible  Church  removed  some  difficulties  out  of 
the  way,  and  he  was  able  to  formulate  his  conception  of 
the  Visible  Church  as  a  local  gathering  of  professed  Christians. 
The  vital  connexion  of  this  body,  by  means  of  the  true  Elect 
whom  it  contained,  with  the  Invisible  Church  and  its 
ascended  Lord,  gave  a  dignity  and  a  divine  sanction  to  its 
human  order ;  it  had  not  only  a  prophetic  function  but  a 
regal ;  it  could  rule.  Above  all,  this  society  represented, 
however  inadequately,  a  group  of  men  separated  by  divine 
decree  from  the  general  mass  of  mankind,  and  therefore 
it  was  not  to  be  identified  even  potentially  with  the  mass. 
The  Magistracy  and  the  Consistory  at  Geneva  worked  side 
by  side,  in  harmony  because  they  were  dominated  by  the 
same  teaching,  but  in  separation.  They  were  not  two 
functions  of  one  City  or  Church  ;  the  City  and  the  Church 
belonged  to  different  creations.  The  influence  of  Geneva 
extended  into  France,  to  the  middle  Rhine,  and  to  the  Low 
Countries  ;  Theodore  Beza  systematized  it  even  beyond 
the  measure  of  Calvin.  In  France  it  was  almost  continu- 
ously at  odds  with  the  royal  Government,  and  the  distinction 
of  Church  and  State  was  thus  made  more  pronounced.  It 


THE   JESUIT  THEOLOGIANS  167 

passed  over  into  Scotland  ;  Knox  and  the  earlier  Congrega- 
tion of  the  Lord  clung  to  medieval  conceptions,  but  the 
new  principle  of  separation  found  completest  expression 
in  the  reported  saying  of  Melville  :  "  There  are  in  Scotland 
two  kingdoms,  the  Kingdom  of  James  Stewart,  and  the 
Kingdom  of  Christ,  wherein  James  Stewart  is  but  a  seely 
vassal." 

The  wars  of  the  League  in  France  affected  the  political 
thought  of  others  than  the  Huguenots.  Under  this  impulse 
the  great  Spanish  Jesuits  laboured  to  construct  a  social 
scheme  in  which  the  Catholic  Church  might  stand  secure 
against  Valois  indifference  or  Bourbon  heresy.  Their 
theories  were  not  mere  shifts  for  an  emergency.  Already 
at  the  Council  of  Trent  Lainez  had  used  his  vast  knowledge 
of  antiquity  in  defence  of  an  opinion  which  made  the  civil 
power  an  institution  sharply  distinguished  from  the  Church, 
"  a  purely  human  institution  for  the  worldly  ends  of  peace 
and  riches."  x  This  teaching  was  opposed  to  imperialism 
in  a  new  sense.  It  broke  up  the  whole  conception  of  human 
society  on  which  the  claims  of  the  Empire  were  based ; 
it  treated  the  Roman  lus  Civile  not  as  actual  and  operative 
law,  but  as  a  philosophic  digest  of  eternal  principles  of 
justice  ;  for  further  elucidation  it  looked  to  the  political 
theory  derived  by  St.  Thomas  Aquinas  from  Aristotle,  and 
found  actual  law  in  the  legislation  of  several  states,  each 
one  of  which  was  a  societas  perfecta  ;  the  best  of  models 
was  the  Spanish  monarchy  with  its  theoretic  constitutional- 
ism. Over  against  these  purely  secular  States,  the  Jesuit 
theologians  set  the  Catholic  Church,  with  the  Pope  its 
chief,  as  another  societas  perfecta  absolutely  distinct  and 
separate. 

Their  teaching  was  carried  by  the  counter-reformation 
into  Italy  and  Germany  and  beyond.     It  helped  to  break 
1  Figgis,  From  Gerson  to  Grotius,  p.  179. 


168     OF  MARRIAGE  IN  THE  MODERN  STATE 

up  alike  the  Empire  and  the  kingdom  of  Germany  at  the 
end  of  the  Thirty  Years  War.  The  court  of  Rome,  wedded 
to  medieval  precedents,  assimilated  it  with  difficulty ;  but 
it  controlled  the  policy  of  Urban  VIII,  and  many  parts  of 
it  were  fully  accepted  under  pressure  of  circumstances  ;  a 
new  mode  of  action  was  found  effective,  and  the  Pope,  from 
being  the  spiritual  overlord  of  Europe,  became  one  of  a 
group  of  sovran  princes,  dealing  with  one  another  by  the 
methods  of  diplomacy.  It  was  here  that  the  Churches  in 
communion  with  Rome  differed  politically  from  the  local 
Churches  of  the  Calvinists.  In  both  cases  alike  the  principle 
of  distinctness  from  the  State  was  recognized,  and  was 
bound  more  and  more  to  determine  actual  relations  ;  but 
the  isolated  Calvinist  Churches  dealt  each  with  the  several 
State  in  which  it  was  established,  and  with  none  other, 
while  the  Churches  that  looked  to  Rome  had  a  spokesman 
of  international  rank.1 

It  is  not  to  be  supposed  that  men  were  generally  conscious 
of  the  revolution  in  which  they  were  actors.  We  look  back 
upon  it  and  see  whither  they  were  tending ;  we  see  the 
modern  state  coming  to  the  birth.  From  the  first  we  can 
see  how  the  change  affected  the  law  and  practice  of  marriage. 
Among  the  Protestants  the  control  of  marriage  fell  at  once 
into  the  hands  of  the  State.  There  was  no  rival  juris- 
diction ;  ministers  of  religion  had  no  function  but  to  direct 
individual  consciences  or  to  instruct  rulers  in  the  principles 


1  The  new  doctrine  was  at  length  sealed  in  the  Encyclical  Immor- 
tale  Dei  of  Leo  XIII  :  "  Ecclesiam  societatem  esse,  non  minus 
quam  ipsam  civitatem,  genere  et  iure  perfect  am."  Observe  also  the 
following  :  "  Quin  etiam  opinione  et  re  eamdem  probarunt  ipsi 
viri  principes  rerumque  publicanim  gubernatores,  ut  qui  paciscendo, 
transigendis  negotiis,  mittendis  vicissimque  accipiendis  legatis, 
atque  aliorum  mutatione  omciorum,  agere  cum  Ecclesia  tanquam 
cum  suprema  auctoritate  legitima  consueverunt." 


LUTHER  AND  CALVIN  169 

of  divine  truth.  "  I  advise,"  said  Luther,  "  that  ministers 
interfere  not  in  matrimonial  questions.  First,  because  we 
have  enough  to  do  in  our  own  office ;  secondly,  because 
these  affairs  concern  not  the  Church,  but  are  temporal 
things,  pertaining  to  temporal  magistrates  ;  thirdly,  because 
such  cases  are  in  a  manner  innumerable ;  they  are  very 
high,  broad,  and  deep,  and  produce  many  great  offences, 
which  may  tend  to  the  shame  and  dishonour  of  the  Gospel. 
Therefore  we  will  leave  them  to  the  lawyers  and  magistrates. 
Ministers  ought  only  to  advise  and  counsel  consciences » 
out  of  God's  Word,  when  need  requires."  1  In  point  of 
fact,  such  counsel  fell,  for  the  most  part,  on  ears  deaf  because 
preoccupied.  The  new  enthusiasm  for  the  Roman  Law 
overmastered  other  influences,  and  marriage  was  regulated 
by  the  legislation  of  Justinian,  with  modifications  imported 
from  old  Germanic  custom.  Luther  aided  this  reactionary 
movement  by  his  denial  of  the  sacramental  character  of 
marriage.  It  was  "  a  physic  against  sin  and  unchastity," 
but  merely  in  the  natural  order.  The  state  of  matrimony 
was  "  the  chief  in  the  world  after  religion,"  2  but  it  had  no 
immediate  connexion  with  religion,  and  was  no  more  to  a 
Christian  than  to  any  other.  It  was  a  civil  contract,  and 
nothing  else  ;  there  were  certain  revelations  of  the  purpose 
of  the  Creator  in  regard  to  it,  as  there  were  in  regard  to 
just  dealing  in  the  market,  but  in  both  cases  alike  justice 
was  to  be  administered  by  the  prince  and  his  officers  ;  the 
Church  was  not  appointed  to  judge  and  rule  in  such  matters. 
Here  is  one  conception  that  has  become  fruitful  in  the 
modern  state. 

The  Reformed  of  Calvin's  school  taught  another  doctrine. 
They  also  remitted  the  judicial  control  of  marriage  to  the 
State,  but  they  left  little  scope  for  legislation.  Marriage 

1  Table-Talk  (Hazlitt),  No.  748.  2  Ibid.  No.  721. 


170     OF  MARRIAGE   IN  THE  MODERN  STATE 

was  for  them  a  sacred  thing,  if  not  technically  a  sacrament. 
For  all  his  stern  predestinarianism,  Calvin  did  not  deny 
free-will  in  Luther's  headlong  fashion,  or  teach  a  depravity 
of  human  nature  so  complete  that  sin  was  entered  into  its 
essence.  Marriage  belonged  to  the  civil  order,  but  this 
order  was  subject  to  the  law  of  God,  and  the  law  of  God 
was  to  be  read  in  the  text  of  Holy  Scripture.  Marriage 
was  here  sufficiently  regulated ;  here,  and  not  in  the  Pan- 
dects, was  to  be  sought  the  law  of  marriage.  Ministers 
of  the  Word  were  to  teach  that  law,  magistrates  were  to 
learn  and  administer  it.  This  immense  claim,  made  by 
men  who  had  no  support  of  tradition,  met  with  amazing 
success.  Wherever  the  Genevan  discipline  spread,  the 
courts  of  the  State  undertook  the  control  of  marriage,  but 
they  were  themselves  under  the  control  of  theologians. 
Rather  may  we  say  that  the  judges  themselves  became  theo- 
logians. The  jurists  of  Ley  den  worked  out  for  them  a  new 
marriage  law,  scrupulously  based  on  scriptural  texts.  It 
was  simple  and  severe,  affording  little  scope  for  dispensation, 
and  allowing  less.  But  reliance  on  the  sole  authority  of 
Scripture  was  more  apparent  than  real.  The  available 
texts,  few  and  brief,  required  interpretation  ;  and  guidance 
was  inevitably  sought  from  Christian  antiquity  and  from 
either  Corpus  luris.  The  glossators  could  not  be  ignored, 
and  in  the  seventeenth  century,  when  the  first  flush  of  revolt 
was  over,  Bronwer  did  not  hesitate  to  quote  even  the 
canonists.  Thus  the  whole  doctrine  of  contract  per  verba 
de  praesenti  was  taken  over,  and  the  principle  of  presumption 
of  marriage  founded  on  open  co-habitation.  A  public  cele- 
bration of  the  contract  was,  however,  demanded  in  the 
interest  of  order,  with  the  attestation  of  a  magistrate,  a 
minister  of  religion,  or  a  notary ;  there  were  even  those 
who  contended  for  the  necessity  of  this,  arguing  that  an 
official  minister  of  God  was  required,  by  whom  in  God's 


THE  REFORMED  171 

name  the  parties  should  be  joined  together  ;  but  the  con- 
trary opinion,  allowing  the  validity  of  a  clandestine  marriage, 
prevailed.  The  obligations  of  the  married  state  were 
strictly  enforced,  and  there  was  a  tendency  to  make  evasion 
or  neglect  a  public  crime  ;  in  Holland,  separation  from 
bed  or  board  by  mutual  consent  was  punished  with  fine  or 
imprisonment.  The  equality  of  the  union,  however,  was 
seriously  marred  by  rules  deduced  from  Pauline  texts  in 
which  a  reference  to  the  inferior  position  assigned  by  Greek 
or  Jewish  custom  to  the  woman  was  read  as  a  promulgation 
of  eternal  law.  The  greatest  change  of  all  was  in  the 
regulation  of  divorce. 

Divorce  was  not  made  easy,  as  in  Lutheran  communities 
where  the  Roman  Law  became  supreme.  It  was  made 
extremely  difficult.  The  Reformed  theologians  were  never 
tired  of  inveighing  against  the  laxity  of  the  Canon  Law  in 
this  respect ;  against  the  frequent  decrees  of  nullity  which 
multiplied  impediments  made  possible,  and  against  the 
separation  from  bed  and  board  which  was  ordered  some- 
times on  frivolous  grounds.  At  first,  in  strict  adherence  to 
the  texts  of  St.  Matthew's  Gospel,  they  made  adultery — 
taking  this  as  the  true  sense  of  Tropvela — the  sole  ground 
for  divorce.  Later,  on  the  strength  of  an  argument  ingeni- 
ously derived  from  the  privilegium  Paulinum,  malicious 
desertion  was  added.  In  both  cases  they  asserted  that  the 
marriage  tie  was  loosed,  not  by  the  decree  of  any  human 
authority,  but  by  the  fact ;  the  function  of  a  tribunal  was 
merely  to  ascertain  the  truth,  and  to  give  it  forensic  pub- 
licity ;  separation  of  the  parties  without  this  formality 
was  an  offence,  not  against  individual  morality,  but  against 
public  policy.  When  desertion  was  the  cause,  however, 
the  duty  lay  upon  the  judge  of  labouring  for  the  reconcilia- 
tion of  the  parties ;  only  when  there  was  proved  and 
obstinate  malice  on  one  side  should  the  breach  of  union  bt 


172     OF  MARRIAGE  IN  THE  MODERN  STATE 

recognized  as  final.  Adultery  also  on  the  man's  side  was 
to  be  judged  less  severely  than  on  the  wife's  side  ;  it  might 
be  a  mere  passing  aberration,  accidentally  disturbing  the 
marital  relation,  but  not  necessarily  destroying  it ;  only 
when  aggravated  by  peculiarly  offensive  circumstances, 
making  it  intolerable  to  a  duly  submissive  wife,  was  it  to 
be  recognized  as  destroying  marriage. 

Divorce  was  thus  treated  as  the  result  of  a  crime,  and  the 
guilty  party  was  in  every  case  to  be  punished,  if  not  by 
death,  then  by  banishment  or  imprisonment.  Marriage 
was  a  holy  estate,  into  which  the  parties  were  brought  by 
the  mere  effect  of  their  consent  according  to  the  will  of 
God.  There  were  no  impediments  but  such  as  were  imposed 
by  the  divine  will,  and  this  was  finally  expressed  in  the 
canonical  Scriptures ;  there  could  be  no  dispensation,  and 
nothing  further  was  required  for  a  valid  marriage.  A 
finding  of  nullity  was  therefore  possible  only  when  there 
had  been  no  consent ;  impotence  was  no  ground  for  annul- 
ling a  marriage,  because  it  was  not  mentioned  as  such  in 
Holy  Scripture.  Only  the  crime  of  one  party  could  relax 
the  bond,  and  that  only  in  cases  expressly  determined  by 
the  written  Word  of  God.  Where  the  Old  Testament 
seemed  to  differ  from  the  New,  its  prescriptions  must  be  set 
aside  as  concessions  made  to  human  weakness  in  a  time  of 
ignorance,  but  withdrawn  when  the  Gospel  was  preached. 

In  one  respect  only  did  the  Reformed  theologians  depart 
from  the  standard  of  the  New  Testament,  and  then  not 
without  ingenious  endeavours  to  square  their  practice  with 
the  text.  They  held  that  divorce  was  a  complete  destruc- 
tion of  the  bond  of  marriage,  leaving  the  parties  free  to 
marry  afresh.  They  violently  attacked  the  contrary  doc- 
trine of  the  canonists.  The  contention  was  a  part  of  their 
polemic  against  the  exaltation  of  virginity,  and  against 
any  kind  of  regulated  celibacy,  in  regard  to  which  they 


THE  JURISTS  OF  LEYDEN  173 

were  in  complete  agreement  with  the  Lutherans.  Canonical 
divorce,  being  nothing  but  separation  a  mensa  et  toro,  con- 
demned the  parties,  they  said,  to  life-long  celibacy,  and 
was  contrary  to  the  will  of  God.  They  did  not  run  to  the 
same  lengths  as  Luther,  who  sometimes  seemed  to  regard 
even  voluntary  celibacy  as  a  sinful  neglect  of  a  duty  imposed 
by  the  Creator,  but  they  would  have  no  trammels  ;  they 
denounced  as  untrue  and  immoral  the  teaching  of  Catholics 
about  the  indissolubility  of  marriage,  because  it  involved 
the  consequence,  where  the  parties  were  necessarily 
sundered,  of  debarring  'them  from  the  holy  estate.  Human 
nature  was  too  corrupt  to  stand  without  this  support,  and 
therefore  divorce  without  remarriage  was  a  direct  encour- 
agement of  sin.  The  jurists  of  Leyden,  who  bore  with 
impatience  the  limitations  put  on  the  lus  Civile  by  the 
faculty  of  theology,  welcomed  a  doctrine  which  set  them 
free  in  one  respect  to  follow  their  chosen  model,  and  all 
communities  of  the  Reformed  went  back  from  the  Christian 
tradition  as  completely  as  the  Lutherans,  to  make  of  divorce 
a  dissolution  of  marriage.  Yet  they  did  not  return  wholly 
to  the  dregs  of  Roman  law ;  they  did  not  make  marriage 
a  mere  partnership,  terminable  at  the  will  of  the  parties ; 
the  dissolution  of  the  union  was  treated  as  the  act  of  God, 
and  of  the  judge  as  God's  minister.  It  was  a  violent  separa- 
tion, said  Brouwer  ;  violent  in  that  it  tore  asunder  that 
which  was  naturally  one  flesh,  entirely  destroying  for  ever 
the  bond  of  marriage.1  Nor  was  the  practice  perfectly 


1  Brouwer,  Delure  Connubiorum.p.  752.  "  Divortmm  definimus 
violentam  matrimonii  distractionem  ex  auctoritate  iudicis  post 
praeviam  causae  cognitionem  factam  animo  perpetuam  constitu- 
endi  divisionem.  .  .  .  Dicimus  divortium  esse  violentam  distrac- 
tionem, quia  quoties  interponitur,  vi  quadam  mmpit  unitatem 
carnis,  quam  perpetuam  voluit  coniugii  natura,  et  ante  votis  spera- 
runt  ipsi  coniuges.  Distractionem  dicimus,  ut  indicemus  ipsum 


174     OF  MARRIAGE  IN  THE  MODERN  STATE 

consistent.  Restrictions  were  put  upon  the  marriage  of 
the  guilty  party,  which  yielded  only  after  long  debate  to 
the  demonstration  of  the  absurdity  of  supposing  that 
marriage  could  be  dissolved  for  one  party  and  remain  binding 
on  the  other.  There  is  no  mean  state  between  the  married 
and  the  unmarried. 

It  must  not  be  supposed  that  the  law  of  marriage,  thus 
taught  by  the  faculties  of  Leyden,  was  law  merely  for  the 
independent  and  sovran  States  of  the  Netherlands.  It 
was  there  put  into  vigorous  practice,  defined  and  expounded 
by  the  most  learned  judiciary  in  Europe,  but  it  was  pro- 
mulgated from  the  University  as  a  law  no  less  universal 
than  that  of  the  canonists  which  it  superseded.  It  was 
even  more  absolute,  for  it  was  held  to  be  wholly  divine, 
and  variable  at  the  bidding  of  no  legislature.  Unlike 
the  Lutherans,  the  Reformed  tied  themselves  within  no 
territorial  barriers  ;  they  addressed  themselves  urbi  et  orbi. 
Their  law  of  marriage  passed  intact  into  Scotland,  where 
it  still  stands  apparently  unassailable.  It  passed  even 
where  their  ecclesiastical  polity  and  theology  were  less 
welcome  ;  it  has  influenced  England  ;  its  degenerate  issue 
rules  in  most  of  the  States  of  the  American  Union ;  it  was 
not  without  effect  on  the  Code  Napoleon,  and  the  effect  has 
been  transmitted  into  most  of  the  States  of  the  modern 
world.  Its  fundamental  vice  was  to  ignore  nature,  and  to 
build  on  the  narrow  basis  of  that  divine  revelation  which 
is  intelligible  only  when  read  in  connexion  with  the  under- 
lying natural  order.  To  some  extent  this  fault  was  corrected 
by  the  jurists,  who  were  steeped  in  the  Pandects  and  could 
not  forget  the  Decretals  ;  the  school  of  Grotius  was  not 
prepared  to  treat  natural  law  as  of  no  account.  But  the 


vinculum,  ipsum  ligamen,  ipsum  nexum  matrimonii  divortio  solvi,' 
He  contrasts  with  this  the  divorce  bona  gratia  of  Roman  law, 


THE  COUNTER-REFORMATION  175 

exclusive  appeal  to  Scripture  supplied  the  bones  and  sinews 
of  the  system,  and  it  has  lost  authority  in  proportion  as  the 
modern  state  has  learnt  to  look  elsewhere  for  guidance. 
This  is  the  second  conception  that  emerges  from  the 
ruins  of  the  medieval  Law  of  marriage.  But  that  law  itself 
continued  to  operate  under  new  conditions.  Where  the 
hierarchy  held  its  own,  strengthened  by  the  counter-refor- 
mation, the  Canon  Law  was  still  administered  ;  at  Rome 
it  was  unchallenged,  and  in  the  newly  established  Sacred 
Congregations,  to  which  the  development  of  the  Tridentine 
reform  was  committed,  a  new  method  of  growth  was  dis- 
covered ;  there  are  no  more  decretals,  but  the  accumula- 
tion of  an  immense  mass  of  case-law  begins.  All  was  done 
as  if  no  great  revolution  were  in  progress  ;  it  probably  did 
not  occur  to  one  official  in  a  thousand  that  his  functions 
differed  in  any  way  from  those  of  his  predecessors  in  the 
thirteenth  century.  Yet  from  the  time  that  Macchiavelli 
wrote  of  the  salute  delta  patria  as  superseding  all  moral 
obligations  and  all  principles  of  justice,  the  very  foundations 
of  policy  were  changing.  Macchiavelli  said  bluntly  what 
other  men  were  thinking  secretly  ;  he  looked  back  to  the 
Omnipotent  State  of  antiquity,  which  the  schoolmen  had 
rashly  brought  into  discussion,  and  he  identified  it  with 
that  Italian  fatherland  which  he  hoped  to  see  united  by 
methods  of  blood  and  iron  under  the  rule  of  an  efficient 
tyrant.  In  the  presence  of  that  ideal  the  dream  of  the 
Civitas  Dei  rapidly  passed  away  ;  it  was  because  the  nas- 
cent States  of  Europe  were  taught  their  politics  by  Macchia- 
velli, that  theologians  hastened  to  disentangle  the  Church 
as  a  separate  and  independent  society  from  the  ruins  of  the 
past.  The  process  was  hastened  by  the  calamities  of  France. 
When  Leaguers  and  Huguenots  were  flying  at  each  others 
throats  and  threatening  a  complete  disruption  of  the  king- 
dom, L'Hopital  and  the  Politiques  sought  a  new  basis  of 


176     OF  MARRIAGE  IN  THE  MODERN  STATE 

national  unity  in  a  government  avowedly  indifferent.  Fol- 
lowing their  lead,  Henri  IV  thought  Paris  worth  a  mass, 
but  would  not  be  quit  of  his  ablest  Huguenot  minister  ;  the 
State  was  ostentatiously  distinguished  from  the  Church.1 
The  fear  of  this  had  already  moved  the  theologians  of  the 
League  to  insist  on  the  distinctness  of  the  Church  ;  prac- 
tice and  theory  went  hand  in  hand.  But  the  distinct  State 
was  not  hostile  to  the  distinct  Church,  and  it  was  a  part  of 
the  tacit  agreement  of  separation  that  the  control  of  marri- 
age should  be  yielded  to  the  Church.  What  had  come  into 
the  hands  of  ecclesiastics  because  they  were  officials  of  the 
respublica  Christiana  remained  in  their  hands  when  that 
political  unity  vanished  away.  There  was  not  as  yet  a 
return  to  the  practice  of  earlier  ages  when  the  State  and 
the  Church  had  their  several  marriage  laws  ;  the  State, 
reserving  its  independent  rights,  conceded  some  of  its  proper 
functions  to  the  Church.  For  France,  the  Edict  of  Decem- 
ber, 1606,  did  this  in  express  terms,  preparing  the  way  for 
the  unhistorical  theory  of  later  jurists  according  to  which 
the  medieval  practice  rested  on  a  sanction  of  the  same  kind.2 
The  Modern  State,  then,  began  its  treatment  of  marriage 
in  three  several  ways.  It  either  took  complete  and  inde- 
pendent charge,  or  took  charge  under  the  direction  of  the 
Church,  or  left  the  charge  entirely  to  the  Church.  In  con- 
sidering this  development,  we  are  not  concerned  with  the 
question  whether  the  Church  in  question  is  Catholic  or 

1  The  separation  of  which  I  am  here  speaking  must  not  be  con- 
founded with  that  of  the  Loi  de  Separation  of  1905.     This  was  the 
severance  of  an  alliance  struck  between  two  separate  and  indepen- 
dent societies  by  the  diplomatic  methods  of  the  Concordat. 

2  The  edict  is  cited  by  Pothier,  Traite  du  contrat  de  Manage,  torn, 
ii.  p.  94.     "  Nous  voulons  que  les  causes  concernant  les  manages 
soient  et  appartiennent  a  la  connoissance  et  jurisdiction  des  juges 
d'Eglise,  a  la  charge  qu'ils  seront  tenus  garder  les  Ordonnances," 
Compare  the  passage  quoted  from  Pothier  below,  p.  195. 


THE  SPECIAL  CASE  OF  ENGLAND          177 

schismatic,  orthodox  or  heretical.  The  distinction  of 
Church  and  State,  and  the  relations  of  the  two  societies, 
can  be  studied  apart  from  these  complications.  The  only 
doctrine  to  be  ruled  out  of  account  is  that  extreme  form 
of  Lutheranism,  reflected  by  much  opinion  current  in  Eng- 
land, which  denies  the  real  existence  of  the  Church  as  an 
organized  community. 

The  case  of  England,  however,  calls  for  separate  con- 
sideration. The  English  Reformation  must  not  be  thought 
of  as  an  insular  movement,  for  it  was  entirely  without  orig- 
inality, and  was  inspired  throughout  by  the  influences 
radiating  from  Saxony,  from  Zurich,  and  from  Geneva  ; 
but  circumstances  directed  the  movement  into  a  distinct 
channel,  producing  results  not  found  elsewhere.  One  such 
result  was  a  long  delay  in  the  separation  of  Church  and 
State.  England  retained  a  medieval  polity  ;  it  was  a  frag- 
ment of  the  unitary  respublica  Christiana  surviving  the 
general  destruction.  The  conditions  of  the  first  breach 
with  Rome  determined  a  long  future.  Henry  VIII  did  not 
merely  quarrel  with  the  Pope  as  King,  but  carried  with  him, 
by  what  art  or  violence  need  not  be  asked,  the  local  hier- 
archy. It  is  difficult  to  say  how  far  the  nascent  distinction 
of  Church  and  State  had  penetrated  into  English  thought ; 
Henry  determinedly  put  it  back.  He  had  no  need  to  assert 
the  independence  of  the  State,  since  he  was  master  of  the 
whole,  and  he  took  care  to  prevent  any  assertion  of  the  inde- 
pendence of  the  Church.  The  preamble  of  the  Statute  for 
Restraint  of  Appeals  significantly  declared  that  the  realm 
of  England  was  an  Empire,  with  the  king  as  its  sole  head, 
acknowledging  no  superior  on  earth  ;  this  realm  was  a 
single  Body  Politic,  "  divided  in  terms  and  by  names  of 
Spiritualty  and  Temporalty,"  each  division  having  its  proper 
functions  and  jurisdiction.  The  "  English  Church,"  the 
Ecclesia  Anglicana  of  the  Charter,  is  identified  with  the 
M.C.S.  N 


178     OF  MARRIAGE  IN  THE  MODERN  STATE 

Spiritualty,  which  "  hath  been  always  thought,  and  is  also 
at  this  hour,  sufficient  and  meet  of  itself,  without  the  inter- 
meddling of  any  exterior  person  or  persons,  to  declare  and 
determine  all  such  doubts,  and  to  administer  all  such  offices 
and  duties  as  to  their  rooms  spiritual  doth  appertain."  It 
is  the  medieval  conception,  reduced  to  the  compass  of  a 
single  nation.  Other  statutes,  and  in  particular  the  Act 
for  the  Submission  of  Clergy,  applied  to  this  narrow  area 
the  larger  ideas  of  Marsiglio  of  Padua  ;  the  king  stepped 
into  the  place  of  legislator  for  the  whole  body  politic,  as- 
cribed by  imperialist  lawyers  and  theologians  to  the  Emperor, 
but  he  exercised  this  function,  as  required  by  English  cus- 
tom, with  the  advice  and  consent  of  a  Parliament  in  which 
both  Spiritualty  and  Temporalty  were  represented.  This 
legislation  was  made  supreme  in  all  subjects  alike,  the 
specific  legislation  of  the  Spiritualty  being  subordinate  ; 
but  the  system  was  not  quite  symmetrical,  since  there  was 
no  specific  legislation  by  the  Temporalty. 

The  restoration  of  the  Papal  supremacy  under  Philip 
and  Mary,  had  it  proved  lasting,  would  undoubtedly  have 
induced  that  same  distinction  of  Church  and  State  which 
was  beginning  to  manifest  itself  in  Philip's  other  dominions  ; 
but  the  Act  by  which  it  was  effected  still  spoke  of  the 
Spiritualty  and  the  Temporalty  in  Parliament  as  "  repre- 
senting the  whole  body  of  the  Realm  of  England,"  and 
legislated  in  regard  to  sacred  things  as  effectively,  if  not 
as  freely,  as  the  Henrician  statutes.  Under  Elizabeth, 
and  afterwards,  the  bare  suggestion  of  the  distinction  was 
treated  as  a  treason  against  the  unity  of  the  realm  and  the 
majesty  of  the  Crown.  Strong  as  was  the  influence  of  Cal- 
vin, his  central  doctrine  of  the  separateness  and  indepen- 
dence of  the  Church  was  rejected  by  all  but  a  faction  ;  even 
when  Cartwright  and  Penry  asserted  it,  they  did  so  with 
such  limitations,  and  with  so  much  tendency  to  compro- 


RESISTANCE  TO   SEPARATISM  179 

mise  on  the  royal  supremacy,  that  the  consistent  separatists 
who  followed  Robert  Brown  denounced  them  as  little  better 
than  conformists.  The  question  was  argued  out ;  Richard 
Hooker  brought  all  his  learning  and  rhetoric  into  action 
against  Puritan  and  Papist  alike  who  argued  for  the  inde- 
pendence of  the  Church.  He  could  not  deny  that  Church 
and  Commonwealth  were  "  things  in  nature  the  one  dis- 
tinguished from  the  other,"  but  he  denied  that  they  were 
"  corporations,  not  distinguished  only  in  nature  and  defi- 
nition, but  in  subsistence  perpetually  severed."  The  names 
import  things  really  different,  "  but  those  things  are  acci- 
dents, and  such  accidents  as  may  and  should  always  dwell 
lovingly  together  in  one  subject."  He  could  not  deny 
that  "  under  dominions  of  infidels  the  Church  of  Christ 
and  their  Commonwealth  were  two  societies  independent," 
but  he  maintained  that  this  state  of  things  was  temporary, 
and  not  according  to  the  eternal  order  of  God ;  "If  the 
Commonwealth  be  Christian,"  he  argued,  "  if  the  people 
which  are  of  it  do  publicly  embrace  the  true  religion,  this 
very  thing  doth  make  it  the  Church."  The  assertion  of 
Allen  that  king  and  parliament  could  no  more  legislate 
for  the  Church  than  for  the  celestial  hierarchies  he  met 
with  an  elaborate  show  of  precedents  in  the  contrary  sense. 
It  is  certain  that  on  the  ground  of  history  Hooker  had  the 
best  of  the  argument ;  the  two  societies  had  actually  been 
merged  in  one  for  centuries.  What  he  did  not  see,  or 
would  not  allow,  was  that  the  merger  in  its  turn  was  become 
obsolete,  that  everywhere  except  in  England  Church  and 
Commonwealth  were  returning  to  their  mutual  indepen- 
dence, and  that  this  was  in  truth  an  order  more  natural  and 
more  permanent  than  that  which  he  was  defending.  He 
turned  to  a  perverse  sense  what  he  must  admit.  "It  is 
undoubtedly  a  thing  even  natural,"  he  wrote,  "  that  all 
free  and  independent  societies  should  themselves  make 


i8o     OF  MARRIAGE  IN  THE  MODERN  STATE 

their  own  laws  ;  "  and  he  could  add  that  "  when  we  speak 
of  the  right  which  naturally  belongeth  to  a  Commonwealth, 
we  speak  of  that  which  needs  must  belong  to  the  Church  of 
God ;  "  but  he  countered  this  by  the  qualification  that 
"  this  power  should  belong  to  the  whole,  not  to  any  certain 
part  of  a  politic  body,"  and  the  body  politic  was  neither 
Church  nor  Commonwealth  in  distinction,  but  both  in 
union.1 

Thus  face  to  face  with  the  new  doctrine,  clearly  enunciated, 
Hooker  rejected  it,  and  his  influence  was  potent  to  prevent 
its  acceptance  in  England.  But  this  influence  was  not 
singular ;  something  in  the  national  temperament  jumped 
with  it,  and  the  straitest  Puritans,  when  free  to  follow  their 
own  bent  in  Massachusetts,  set  up  a  medieval  polity,  a 
theocracy  in  which  the  ecclesiastical  element  predominated 
over  the  civil.  Not  even  the  Independents,  triumphing 
under  Cromwell,  could  work  out  a  consistent  scheme  of 
Church  and  State.  The  Restoration  brought  back  the 
unitary  system,  with  the  added  severity  and  intolerance 
of  the  Test  Acts  ;  the  Toleration  Act  did  but  allow  dis- 
senters a  precarious  footing  in  the  State  and  left  them  in 
the  position  of  political  aliens,  their  unlawful  exercise  of 
citizenship  being  covered  by  annual  Acts  of  Indemnity. 
As  matter  of  theory,  Beveridge  taught  with  perfect  clear- 
ness the  separateness  of  Church  and  State,  and  the  existence 
of  their  several  systems  of  law,  in  the  Prolegomena  to  his 
Synodicon,  but  this  learned  disquisition  had  no  effect  in 
practical  politics.  Not  until  the  repeal  of  the  Test  and 
Corporation  Acts  in  1828  was  the  separation  of  Church  and 
State  reluctantly  achieved.  Even  now,  in  England  alone 
perhaps  of  all  countries  of  the  world,  there  are  men  who 
shut  their  eyes  to  facts  and  continue  a  stammering  utter- 
ance of  the  categories  of  Hooker. 

1  Eccl.  Pol.,  viii.  ch.  i  and  6. 


CONTROL  OF  THE  SPIRITUALTY          181 

In  this  survival  of  the  medieval  polity  marriage  remained 
for  the  most  part  under  the  control  of  the  Spiritualty. 
The  Act  for  the  Submission  of  Clergy  asserted  the  right 
of  the  whole  body  politic  to  set  aside  anything  done  by  a 
part,  and  the  whole  range  of  the  Canon  Law  was  treated 
as  the  peculiar  work  of  the  clergy,  being  valid  therefore 
only  so  far  as  it  did  not  contravene  the  king's  prerogative 
and  the  customary  and  statutory  laws  of  the  realm.     This 
was  in  part  an  assertion  of  the  canonical  principle  of  con- 
suetudo,  but  in  the  predominance  given  to  statute  law  there 
was  a  new  restraint  of  the  Spiritualty,  and  the  consequences 
were  at  once  felt.     Appeals  to  Rome  were  forbidden,  and 
a  large  power  of  quashing  sentences  of  the  ecclesiastical 
courts,  and  of  ordering  justice  to  be  done  therein,  was  con- 
ferred on  the  Crown.    These,  however,  were  but  means  to 
an  end  ;    their  object  was  seen  in  a  series  of  statutes  by 
which    Henry,    struggling   with   his    matrimonial    difficul- 
ties, opened  one  of  the  most  sordid  chapters  of  English 
legislation.     There  were  three  of  these.     The  first,  in  the 
year  1533,  was  directed  against  the  Queen  Katharine  and 
her  daughter  Mary.     After  exhausting  the  forces  of  diplo- 
macy in  the  attempt  to  obtain  a  decree  of  nullity  from  Rome, 
Henry  turned  the  tables  with   "  An  Act  concerning  the 
King's  succession,"  which   declared  fifteen  specified  kin- 
ships and  affinities  to  be  diriment  impediments  by  Divine 
Law,    without    possibility    of    dispensation.     His  marriage 
with  Katharine,  validated  only  by  dispensation,  was  con- 
sequently annulled,  and  Mary  was  excluded,  as  illegitimate, 
from  the  succession  to  the  Crown.    To  safeguard  his  mar- 
riage with  Anne  Bullen,  however,  Henry  limited  this  indis- 
pensable   impediment    to    cases    "where    marriages    were 
solemnized  and  carnal  knowledge  was  had."    Three  years 
later  it  was  Anne's  turn  to  be  repudiated,  and  an  Act  of 
1536  removed  this  limitation,  so  that  Henry's  marriage 


182     OF  MARRIAGE  IN  THE  MODERN  STATE 

with  her  might  be  annulled  on  the  ground  of  his  illicit  con- 
nexion with  her  sister  Mary  ;  Anne's  daughter  Elizabeth 
was  thus  rendered  illegitimate  and  excluded  from  the  suc- 
cession. In  1540  the  king's  scruples  were  more  intricate. 
He  had  just  got  rid  of  Anne  of  Cleves  on  the  ground  of  her 
precontract  with  the  Duke  of  Lorraine's  son,  but  this  pre- 
cedent was  awkward,  since  Henry,  himself  a  much  con- 
tracted man,  was  proposing  to  marry  Katharine  Howard,  who 
also  not  improbably  had  some  similar  experience.  There- 
fore a  third  Act  renewed  the  Parliament's  earnest  protest 
against  the  iniquity  of  papal  dispensations,  and  provided 
that  in  future  precontract  should  not  be  an  impediment  to 
marriage.  The  statute  was  so  carelessly  or  so  skilfully 
drawn  as  to  include  in  the  reform  not  only  espousals  de 
futuro  but  also  contracts  de  praesenti,  where  consummation 
had  not  followed.  But  further,  Katharine  Howard  was 
first  cousin  to  Anne  Bullen,  and  perhaps  to  other  ladies 
whom  the  king  had  honoured  with  intimacy  ;  therefore 
a  brief  clause  provided  that  "  no  reservation  or  prohibition, 
God's  law  except,  shall  trouble  or  impeach  any  marriage 
without  the  Levitical  degrees."  It  should  be.  explained 
that  the  fifteen  kinships  enumerated  in  the  previous  Acts 
were  taken  from  the  eighteenth  chapter  of  Leviticus,  with 
the  addition  of  the  wife's  sister,  doubtfully,  or  not  at  all 
included  therein. 

Here  Henry  rested,  getting  rid  of  Katharine  Howard 
more  expeditiously  and  being  continuously  satisfied  with 
a  third  Katharine.  The  Act  of  1540  was  too  scandalous 
even  for  his  devoted  servants,  and  it  was  repealed  in  the 
second  year  of  Edward  VI,  the  short  clause,  however, 
limiting  impediments  "  without  the  Levitical  degrees " 
being  obscurely  retained  and  confirmed.  Mary  and  Eliza- 
beth succeeded  to  the  Crown,  in  spite  of  their  illegitimacy, 
and  in  1554  the  three  Acts  above  mentioned  were  unre- 


LEGISLATION  OF  THE  SPIRITUALTY       183 

servedly  repealed,  the  canonical  law  of  marriage  being 
restored  intact.  Elizabeth,  reviving  her  father's  legisla- 
tion, naturally  omitted  the  two  Acts  designed  to  exclude 
her  sister  and  herself  from  the  succession,  but  confirmed 
the  small  fraction  of  the  third  Act  which  had  been  saved 
under  Edward  VI,  vaguely  restricting  diriment  impedi- 
ments to  those  of  God's  law,  and  still  more  vaguely  referring 
to  the  Levitical  degrees  for  guidance. 

Much  was  heard  of  this  restriction  afterwards,  but  for 
a  time  it  seems  to  have  been  neglected.     Matthew  Parker, 
as  Archbishop  of  Canterbury,  acted  with  entire  indepen- 
dence.    In  the  year  1563  he  put  out  an  Admonition  directed 
against  marriage  within  prohibited  degrees,  against  clan- 
destinity,   and  against   marriage  after  divorce.1    To  this 
was  appended  a  Table,  setting  out  in  detail  sixty  kinships 
and  affinities  which  were  declared  to  be  diriment  impedi- 
ments according  to  the  law  of  God.     Of  others  it  was  ob- 
scurely enjoined  :    "In  contracting  betwixt  persons  doubt- 
ful, which  be  not  expressed  in  this  Table,  it  is  most  sure 
first  to  consult  men  learned  in  the  law,  to  understand  what 
is  lawful,  what  honest  and  expedient,  before  the  finishing 
of  their  contracts."     This  can  be  understood  only  on  the 
supposition  that  there  were  other  impediments  of  consan- 
guinity and  affinity,  for  which  dispensation  was  possible, 
but  that  within  the  limits  of  the  Table  there  would  be  no 
dispensing.     The  Table  itself  went  far  beyond  the  Levitical 
degrees  of  the  statute  of  1540.     There  seems  to  be  no  doubt 
that   Parker,   like   many  predecessors  in   canonical  legis- 
lation, based  his  rule  on  the  Levitical  prohibitions,  but 
enlarged  them  by  a  method  of  parity  of  reasoning  derived 
from  the  Christian  principle  of  the  complete  equality  of 
the  sexes.     How  foreign  was  this  method  of  interpretation 
to  the  Levitical  rule  is  shown  by  the  marriage  of  nephew 
1  Cardwell,  Doc.  Ann.,  i.  316. 


184     OF  MARRIAGE  IN  THE  MODERN  STATE 

and  aunt  being  forbidden  while  the  marriage  of  an  uncle 
with  his  niece  was  approved.1  Thus  the  Admonition  was 
in  two  ways  incompatible  with  the  surviving  remnant  of 
Henry's  legislation.  It  may  be  remarked  also  that  it  set 
the  seal  of  illegitimacy  anew  on  Elizabeth,  whose  strangely 
assorted  character  included  a  magnanimity  that  might 
scorn  to  interfere  in  such  a  matter. 

Parker's  Admonition  was  confirmed  by  a  provincial  con- 
stitution of  the  year  1571,  with  a  significant  distinction  ; 
in  the  case  of  the  relations  expressly  mentioned  in  the  book 
of  Leviticus,  together  with  that  of  a  wife's  sister,  the  mar- 
riage unlawfully  contracted  was  to  be  dissolved  by  the 
bishop's  authority  ;  in  all  other  cases  marriage  was  merely 
forbidden,  as  on  the  ground  of  an  obstructive  impediment. 
In  1604,  however,  a  further  provincial  constitution  con- 
firmed Parker's  list  without  distinction  as  based  on  the 
laws  of  God ;  all  such  marriages  were  to  be  judged  inces- 
tuous, and  the  parties  were  to  be  separated  by  course  of 
law.  Nothing  was  said  about  the  possibility  of  dispensa- 
tion.2 On  this  canon  the  spiritual  courts  acted  without 
hesitation,  but  Sir  Edward  Coke  now  began  his  great  cam- 
paign directed  to  the  restraint  of  their  activity  by  writ  of 
prohibition,  and  much  trouble  ensued.  It  seems  pretty 
clear  that  the  canon  was  contrariant  to  statute  law,  and 
many  attempts  were  made  to  confine  sentences  of  nullity 
within  the  limits  of  the  Levitical  degrees.  These  were 
alternatively  construed  strictly  or  interpreted  by  parity  of 
reason.  In  the  case  of  a  marriage  between  a  man  and  his 
great-uncle's  wife,  annulled  by  the  spiritual  court,  a  pro- 
hibition was  granted  on  the  ground  that  this  was  not  one 
of  the  Levitical  degrees.3  The  conflict  turned  especially 
on  the  case  of  the  wife's  sister,  which  the  temporal  courts 

1  Supra,  p.  114.  2  Cardwell,  Synodalia,  i.   130,  222. 

3  Gibson,  p.  499.     This   case  shows  that  the  ecclesiastical  courts 


REFORMATIO  LEGUM  185 

were  unwilling  to  include,  until  in  the  reign  of  Charles  II, 
they  lighted  upon  the  remarkable  discovery  that  the  sur- 
viving clause  of  the  Act  of  1540  involved  a  reference  to  the 
previous  Act  of  1536,  which  was  thus  incidentally  revived, 
and  settled  the  question.1 

One  other  statutory  change  of  the  law  may  be  noted. 
An  Act  of  the  second  year  of  Edward  VI  did  away  with  the 
impediment  of  Holy  Order,  though  even  the  pressing  need 
of  Cranmer  did  not  induce  the  legislature  to  make  the  reform 
retrospective.  It  was  repealed  in  the  first  year  of  Mary, 
and  was  not  revived  until  the  accession  of  James  the 
First. 

The  abortive  Reformatio  Legum  would  have  brought  the 
Marriage  Law  of  England  into  almost  exact  agreement  with 
that  of  the  Reformed  of  Switzerland  and  Geneva,  except 
that  it  retained  the  jurisdiction  of  the  spiritual  courts. 
So  strongly  ran  for  a  time  the  current  of  opinion  in  favour 
of  the  absolute  dissolution  of  marriage  by  adultery,  that 
many  persons  in  that  case  contracted  fresh  marriages,  of 
whom  the  Marquis  of  Northampton  procured,  in  the  year 
1551,  the  legitimation  of  his  issue  by  a  private  Act  of  Parlia- 
ment. From  the  year  1554  to  the  end  of  the  century,  we 
find  the  bishops  continually  endeavouring  to  check  this 
abuse,2  and  in  1597  a  canon  of  the  Provincial  Synod  of  Can- 
terbury, renewed  in  1604,  required  the  judge  of  an  ecclesias- 
tical court,  before  passing  a  sentence  of  divorce,  to  take 

recognized  canonical  impediments  extending  beyond  those  set  out 
in  Parker's  Table. 

1  On  so  obscure  and  technical  a  subject  I  can  but  quote  Halsbury, 
The  Laws  of  England,  vol.  xvi.,  p.  283  :   "  The  two  former  statutes, 
though  repealed  by  stat.  (1554)  i  &  2  Ph.  and  M.  c.  8,  may  be  re- 
ferred to  as  explaining  the  stat.  (1540)  32  Hen.  8  c.  38,  which  was 
confirmed  by  stat.  (1558)  i  Eliz.  c.  i  s.  3."     See  also  Gibson,  p.  496. 

2  See  the  Alcuin  Club's  Visitation  Articles  and  Injunctions,  vols. 
ii.  and  iii.  passim. 


i86     OF  MARRIAGE   IN  THE  MODERN  STATE 

bonds  of  the  parties  that  they  would  not  attempt  to  con- 
tract a  new  marriage  while  both  were  living.  It  being  still 
doubted  whether  such  a  -marriage  were  merely  unlawful,  or 
void  by  reason  of  a  diriment  impediment,  Whitgift  was 
asked,  in  the  reported  case  of  Foljambe,  to  certify  the  tem- 
poral court  of  the  answer  to  this  question,  and  he  replied 
after  consultation  with  competent  theologians  that  it  was 
certainly  void.1 

While  the  ordinary  control  of  marriage,  legislative  and 
juridical,  was  thus  left  to  the  Spiritualty,  we  find  the  Tem- 
poralty  also  intervening,  at  first  exceptionally,  afterwards  in 
more  regular  fashion.  The  equitable  jurisdiction  of  the 
Court  of  Chancery  was  found  available  for  determining  some 
questions  of  property  between  husband  and  wife,  in  regard 
to  which  the  ecclesiastical  courts  were  powerless  against 
the  rigour  of  the  common  law.  In  the  view  of  the  common 
law,  the  property  belonging  to  a  woman  at  the  time  of  her 
marriage,  or  accruing  to  her  afterwards,  passed  entirely  into 
the  hands  of  her  husband,  who  was  thus  the  sole  administra- 
tor of  their  common  stock.  A  remedy  for  this  inequitable 
rule  being  sought  by  the  creation  of  a  trust  for  the  wife's 
benefit,  the  matter  came  within  the  cognizance  of  the 
Chancery,  the  practice  and  principles  of  which  were  almost 
entirely  borrowed  from  the  spiritual  courts,  and  consequently 
there  grew  up  a  systematic  jurisprudence  by  which  an 
approximation  to  the  true  partnership  involved  in  the  divine 
law  of  marriage  was  eventually  secured.  *Less  admirable 
was  the  occasional  intervention  of  Parliament.  An  Act  of 
the  first  year  of  James  I  made  simultaneous  bigamy  felony 
with  pain  of  death,  but  was  carefully  drawn  so  as  to  exclude 
the  case  of  a  man  or  woman  divorced.  During  the  period  of 
the  Commonwealth,  English  practice  was  assimilated  to  that 
of  most  Reformed  communities,  and  ten  years  after  the 
1  Gibson,  p.  336. 


THE  DIVORCE  OF  LORD   ROOS          187 

Restoration  had  brought  back  the  Canon  Law  and  the  juris- 
diction of  the  spiritual  courts,  a  private  Act  of  Parliament 
made  a  precedent  looking  the  same  way,  which  was  the  source 
of  much  evil.  It  was  in  the  notorious  case  of  Lord  Roos. 

In  the  year  1669  Lord  Roos  obtained  from  the  spiritual 
court  a  decree  of  divorce  on  the  ground  of  his  wife's  adultery. 
In  the  following  year  a  Bill  for  authorizing  his  marriage  to 
another  woman  was  brought  into  the  House  of  Lords,  and 
debated  at  extraordinary  length,  being  eventually  carried 
through  all  stages  by  narrow  majorities.  Two  bishops  sup- 
ported it,  Cosin  of  Durham,  and  Wilkins  of  Chester ;  the 
rest  opposed.  The  debate  was  almost  entirely  theological, 
the  one  side  defending  the  position  usually  adopted  by  the 
Reformed,  and  alleging  that  adultery  ipso  facto  dissolves  the 
bond  of  marriage;  the  other  side  maintaining  the  actual 
discipline  of  the  Church.  There  were,  however,  some  varia- 
tions ;  reference  was  made  to  the  practice  of  the  Greek 
Church  ;  opponents  of  the  Bill  denounced  the  inequitable- 
ness  and  uncharity  of  allowing  marriage  to  the  man  and 
disallowing  it  to  the  woman,  "  who  whilst  living  may  need 
marriage  as  much,  or  more  than  the  man  ;  "  they  attacked 
the  vulgar  error  of  "  thinking  that  men  have  a  greater  pre- 
eminence than  women,"  and  the  mistake  of  confounding 
permission,  as  in  the  Greek  Church,  with  approbation  ;  the 
permission,  they  argued,  did  not  go  beyond  exemption  from 
penalty.  Lord  Bristol  said  that  he  would  support  a  Bill  to 
legitimate  issue  post  factum  as  in  the  case  of  the  Marquis  of 
Northampton  under  Edward  VI,  but  not  "  a  law  a  priori  to 
encourage  one  to  steal  his  neighbour's  mutton,  that  is  to 
establish  wickedness  by  a  law."  Lord  Lucas  objected  that 
it  was  a  Bill  for  encouraging  adultery ;  Lord  Halifax  that 
it  was  a  Bill  for  encouraging  perjury,  "  when  it  shall  have 
this  strong  motive,  viz.,  of  being  quit  of  a  wife  one  is  aweary 
of  and  the  hopes  of  obtaining  one  one  loves."  Lord  Essex 


i88     OF  MARRIAGE  IN  THE  MODERN  STATE 

urged,  on  the  other  side,  that  this  was  an  act  of  grace,  that 
is  to  say,  a  mere  dispensation,  which  no  other  person  could 
demand  ex  debito  iusto  ;  the  supposed  ill  effects  would  not 
follow  from  a  particular  Bill  for  the  relief  of  one  person, 
which  did  not  alter  the  general  law.  Lord  Ashley  made  the 
remarkable  assertion  that  "  before  the  Council  of  Trent 
marriage  was  a  civil  contract,  and  managed  by  the  civil 
magistrate."  Lord  Holies  cited  in  favour  of  the  Bill  the 
statute  of  James  I  against  bigamy,  which  excepted  the  case 
of  those  divorced  by  ecclesiastical  censure.1  The  Bill  was 
passed  by  the  House  of  Commons  with  less  difficulty,  but 
not  without  great  debate,  and  became  a  precedent  which  was 
followed  with  increasing  frequency  until  the  year  1857. 
Similar  Acts  are  still  passed  for  persons  resident  in  Ireland. 
I  have  thought  this  incident  worthy  of  so  much  space,  not 
only  as  an  important  precedent,  but  also  as  a  turning  point 
in  the  relations  of  Church  and  State.  It  is  true  that  the 
distinction  was  hardly  as  yet  even  present  to  men's  minds, 
and  was  not  for  many  years  to  become  effective  in  English 
politics.  When  Lord  Bristol  declared  that  the  Church  was 
against  the  Bill,  he  was  not  using  modern  language.  "  An 
essential  right  of  the  Church  of  England,"  he  said,  "  is  in 
danger  of  being  overthrown  by  it,  which  is  to  determine  in 
matters  ecclesiastical."  But  he  spoke  of  the  Church  in  the 
sense  of  the  Statute  of  Appeals,  which  he  seems  to  have  had 
in  mind,  and  meant  that  the  Temporalty  was  invading  the 
province  of  the  Spiritualty  of  the  realm.  The  character  of 
the  debate  made  this  plain  ;  the  House  of  Lords  talked  like 
a  Council  of  the  Church ;  the  profligate  Duke  of  Bucking- 
ham, Dryden's  Zimri,  quoted  Bellarmine,  and  the  satirist 
might  have  added  to  the  characters  of  "  fiddler,  statesman, 
and  buffoon,"  that  of  an  amateur  divine.  Yet,  looking  back 

1  See  the  notes  of  the  debates  in  Harris,  The  Life  of  Edward  Moun- 
tagu,  First  Earl  of  Sandwich,  vol.  ii.,  pp.  318-32. 


RESTRAINT   OF  CLANDESTINITY  189 

from  the  standpoint  of  a  time  when  the  essential  separate- 
ness  of  Church  and  State  is  recognized,  we  may  see  in  the 
whole  proceeding  an  early  step  towards  independent  action 
of  the  State  in  regard  to  marriage. 

The  gradual  emergence  of  the  State  is  even  more  apparent 
in  efforts  that  were  made  to  restrain  clandestine  marriages. 
So  long  as  the  disciplinary  jurisdiction  of  the  spiritual  courts 
was  effectively  supported,  either  by  religious  sanctions  or  by 
temporal  coercion,  regular  marriage  in  facie  ecclesiae  could 
be  more  or  less  enforced.  In  the  year  1598  Sir  Edward  Coke, 
at  that  time  Solicitor  General,  was  put  to  penance  for  marry- 
ing without  publication  of  banns  the  grand-daughter  of  the 
great  Burleigh,  and  escaped  excommunication  only  by  an 
absurd  plea  of  ignorance  of  the  law.  The  bitter  hostility 
to  the  ecclesiastical  courts  which  he  afterwards  displayed 
in  Parliament  and  on  the  Bench,  was  probably  due  to  this 
humiliation.  But  the  growing  practice  of  prohibition,  fur- 
thered by  Coke  himself,  and  the  abolition  of  the  oath  ex 
officio,  seriously  weakened  this  jurisdiction,  and  after  the 
Restoration  licence  passed  all  bounds.  Certain  exempt 
places  in  or  near  London  lent  themselves  more  especially 
to  the  ecclesiastical  performance  of  clandestine  marriages ; 
the  registers  of  the  Church  of  St.  James,  Duke's  Place,  one 
of  these  refuges  of  disorder,  are  said  to  have  shown  nearly 
forty  thousand  contracted  in  less  than  thirty  years.1  The 
difficulty  of  bringing  these  places  under  episcopal  control 
induced  the  legislature  to  interfere,  but  with  little  effect. 
Under  pretext  of  securing  the  collection  of  a  stamp-duty, 
imposed  on  licences  and  certificates  of  marriage,  any  priest 
officiating  at  clandestine  espousals  was  in  1694  made  liable 
to  a  fine  of  a  hundred  pounds.  This  merely  diverted  the  evil 
into  a  new  channel ;  to  broken  clergymen,  already  in  prison 
for  debt,  an  accumulation  of  fines  meant  nothing,  and  there 
1  Burn,  Histi  of  Fleet  Marriages,  p.  4. 


OF   MARRIAGE   IN  THE   MODERN   STATE 

were  always  such  in  the  Fleet  or  the  King's  Bench  ;  a  rich 
harvest  of  fees  was  here  reaped  by  prisoners  and  gaolers,  who 
afforded  opportunities  for  hasty  and  secret  marriages. 

The  habit  of  resorting  to  these  disreputable  devices  was 
due  to  a  doctrine,  if  we  may  not  rather  call  it  a  superstition, 
which  at  this  time  invaded  the  Inns  of  Court.  While  divines 
and  ecclesiastical  lawyers  maintained  in  their  jurisprudence 
the  sufficiency  of  a  marriage  contracted  per  verba  de  praesenti, 
without  religious  rites  and  even  without  witnesses,  the  com- 
mon lawyers  on  the  other  hand  were  beginning  to  maintain 
that  a  marriage  was  not  valid  unless  contracted  in  the  pres- 
ence of  a  clerk  in  Holy  Orders.  Two  explanations  of  this 
have  been  offered.  One  looks  to  a  maxim  of  Bracton :  ' '  No 
woman  can  claim  dower  unless  she  has  been  endowed  at  the 
church  door."  As  the  King's  Courts  had  cognizance  of 
marriage  only  in  regard  to  such  material  accidents  as  dowry, 
they  are  supposed  to  have  formed  the  habit  of  ignoring  all 
marriages  that  for  lack  of  due  publicity  failed  to  secure  a 
woman  this  right.  The  other  explanation  looks  to  the  un- 
willingness of  the  criminal  courts  in  cases  of  bigamy  to  take 
note  of  anything  but  open  and  notorious  fact,  such  as  a  pub- 
lic ceremony  of  marriage  ;  they  would  not  entertain  subtle 
questions  of  marriage  de  iure.  It  is  not  clear  when  the  new 
doctrine  took  definite  form.  It  was  not  accepted  in  1661, 
when  a  jury  at  Nottingham  found  a  verdict  for  the  legiti- 
macy of  a  child  of  Quaker  parents,  who  were  accused  of 
coming  together  like  brute  beasts  with  no  form  of  marriage  ; 
on  this  occasion  the  court  laid  down  the  sound  principle  of 
law  that  the  consent  of  the  parties  alone  was  sufficient  for  a 
true  marriage.1  But  the  contrary  opinion  grew,  the  person 
of  a  priest  anywhere  encountered  being  taken  as  equivalent 
to  ostium  or  fades  ecclesiae,  until  in  the  year  1844  the  House 

1  Sewel,  Hist,  of  the  Rise,  etc.  of  the  Christian  people  called  Quakers, 
ed.  1722,  p.  292. 


THE  MARRIAGE  ACT   OF   1753  191 

of  Lords,  hearing  an  appeal  from  Ireland,  decided,  says  a 
caustic  commentator,  that  "  by  the  ecclesiastical  and  the 
common  law  of  England  the  presence  of  an  ordained 
clergyman  was  from  the  remotest  period  onward  essential 
to  the  formation  of  a  valid  marriage."  He  adds  the  re- 
mark :  "  If  the  victorious  cause  pleased  the  Lords,  it  is  the 
vanquished  cause  that  will  please  the  historian  of  the  Middle 
Ages."  x  But  the  idea  was  not  new.  What  the  House  of 
Lords  affirmed  in  the  nineteenth  century  was  already  mooted 
in  the  seventeenth  century  ;  the  ecclesiastical  courts  in  their 
regular  jurisprudence  recognized  the  validity  of  marriages 
contracted  without  the  assistance  of  a  priest,  but  the  king's 
courts  in  their  casual  jurisprudence  held  such  marriages  at 
least  doubtful.  Parliament  sustained  the  doubt,  and  while 
imposing  the  marriage  tax  on  Quakers  and  Jews  who  should 
"  cohabit  and  live  together  as  man  and  wife,"  carefully  pro- 
vided that  their  unions  should  not  on  that  account  be  con- 
strued as  marriages  good  or  effectual  in  law.2  Persons, 
therefore,  intending  an  irregular  marriage  were  driven,  for 
greater  security,  to  procure  the  help  of  a  clerk  in  Holy  Orders, 
and  the  Fleet  parsons  flourished. 

The  scandal  became  increasingly  intolerable  until  in  1753 
the  Chancellor,  Lord  Hardwicke,  devised  a  drastic  remedy. 
His  Bill  "  for  the  better  preventing  of  clandestine  marri- 
ages "  was  carried  through  the  two  Houses  of  Parliament 
after  acrimonious  debate,  and  placed  the  contract  of  marri- 
age on  an  entirely  new  footing.  In  brief,  it  enacted  that  any 
marriage  contracted  elsewhere  than  in  the  parish  church  of 
one  of  the  parties,  after  due  publication  of  banns,  should  be 
"  null  and  void  to  all  intents  and  purposes  whatsoever," 
saving  only  the  right  of  the  Ordinary  to  dispense  with  banns 

1  Pollock  and  Maitland,  History  of  English  Law,  vol.  ii.,  pp.  372- 

383. 

2  Stat.  6  &  7  Will.  Ill,  c.  6.^ Gibson,  Codex,  p.  521. 


IQ2     OF  MARRIAGE  IN  THE  MODERN  STATE 

and  of  the  Archbishop  of  Canterbury  to  dispense  by  special 
licence  with  time  and  place.  The  Act  also  annulled  marri- 
ages of  persons  under  twenty-one  years  of  age  contracted  in 
spite  of  the  express  dissent  of  parents  or  guardians  made 
known  after  the  publication  of  banns,  or  without  the  express 
consent  of  the  same  to  the  issue  of  a  license.  To  prevent  the 
treatment  of  a  clandestine  contract  as  espousals  de  futuro, 
it  forbade  the  prosecution  of  a  suit  in  a  spiritual  court  to 
compel  marriage  in  facie  ecclesiae  or  the  ground  of  such 
espousal.  To  check  attempted  marriages  which  would  thus 
be  invalid,  the  Act  made  it  felony  to  solemnize  matrimony 
otherwise  than  as  .allowed  by  law.  Four  exceptions  were 
made  ;  the  Act  was  not  to  apply  to  the  marriages  of  mem- 
bers of  the  royal  family,  to  those  in  which  both  parties  were 
Quakers  or  Jews,  or  to  those  solemnized  beyond  the  seas. 

The  likeness  of  this  legislation  to  that  of  the  Council  of 
Trent  is  obvious,  and  objections  were  taken  closely  resem- 
bling those  put  forward  in  that  council.  Henry  Fox,  who 
had  himself  nine  years  before  contracted  an  irregular  marri- 
age in  the  Fleet,  protested  against  "  making  so  free  with  the 
laws  of  God  and  nature."  1  The  power  of  Parliament  to 
create  a  diriment  impediment  was  challenged  on  the  ground 
that  marriage  belonged  to  the  spiritual  order,  and  this  con- 
tention was  put  forward  from  strange  quarters.  The  bishops, 
on  the  other  hand,  supported  the  Chancellor,  being  troubled 
by  the  prevailing  disregard  of  the  ecclesiastical  law.  Horace 
Walpole,  who  wrote  a  contemptuous  account  of  the  debates 
in  his  Memoirs  of  the  Last  Ten  Years  of  the  Reign  of  George  II, 
sneeringly  remarked  that,  "  Churchmen  acquiesced  in  the 
legislature's  assuming  this  power  in  spirituals."  Looking 
back  dispassionately  on  the  heated  discussion,  we  may  see 
here  a  last  act  of  the  unitary  body  politic  in  which  Church  and 
State  were  merged.  Churchmen  did  more  than  acquiesce  ; 

1  Cobbett,  Parliamentary  History,  xv.  73. 


SEPARATION  OF  CHURCH  AND  STATE     193 

they  took  an  active  part  in  promoting  the  measure,  and  in 
their  own  courts  enforced  its  provisions  with  rigour.  Lord 
Hardwicke's  Act,  indeed,  went  beyond  the  Tridentine  legis- 
lation in  the  enforcement  of  ecclesiastical  rule  ;  for  it  re- 
quired not  only  the  presence  of  a  parish  priest  as  witness  to 
the  contract  of  the  parties,  but  also  his  active  participation. 
Marriage  could  not,  save  in  the  few  excepted  cases,  be  validly 
contracted  elsewhere  than  in  a  parish  church,  and  here  it 
could  not  be  contracted  without  the  full  ritual  of  the  Church. 
Dissenters  were  therefore  compelled  to  conform  in  this  parti- 
cular if  they  would  be  validly  married  ;  they  lost  the  power, 
hitherto  precariously  enjoyed,  of  contracting  after  their  own 
fashion,  and  their  ministers  attempting  to  solemnize  marriage 
for  them  would  be  guilty  of  felony.  The  repeal  or  amend- 
ment of  the  Act  was  several  times  attempted  both  on  this 
ground  and  because  of  the  frequent  nullities  of  marriage 
arising  from  its  strictness,  which  gave  notorious  advantages 
to  the  seducers  of  ignorant  women  ;  in  the  year  1823  a  new 
Marriage  Act  remedied  some  of  the  latter  defects  by  allow- 
ing the  validity  of  a  marriage  where  the  law  was  not  know- 
ingly and  wilfully  disregarded  by  both  parties  alike,  but  no 
attention  was  paid  to  the  grievance  of  dissenters.  They 
were  soon  to  set  this  right  by  the  effective  separation  of 
Church  and  State. 

We  must  return  on  our  steps  to  observe  the  results  of  that 
separation  in  countries  where  it  did  not  lag  so  long  as  in 
England.  In  France,  where  its  necessity  first  became  evi- 
dent, its  effect  also  was  soon  apparent.  The  Tridentine 
rule  had  but  little  practical  effect  in  the  kingdom,  but 
local  custom  and  royal  ordinances  imposed  even  more  strin- 
gent requirements,  the  presence  of  the  cure  and  of  four  wit- 
nesses being  necessary  for  a  valid  marriage.  After  the  Wars 
of  Religion,  however,  the  existence  within  the  kingdom  of 
large  bodies  of  Calvinists,  not  merely  tolerated  but  accorded 

M.C.S.  o 


194     OF  MARRIAGE  IN  THE  MODERN  STATE 

definite  rights  by  the  Edict  of  Nantes,  made  it  impossible  for 
the  emergent  State  to  leave  the  control  of  marriage  entirely 
to  the  Church.  There  were,  in  fact,  two  theories  of  marriage 
law  concurrent,  one  of  which  demanded  the  active  interven- 
tion of  the  civil  magistrate.  But  further,  the  separate  con- 
sciousness of  the  State  as  guardian  of  justice  compelled 
action  in  regard  to  those  incidents  and  accidents  of  marriage 
which  touch  the  property  or  civil  right  of  the  parties  ;  it  was 
impossible  for  the  judiciary  to  avoid  questioning  the  validity 
of  an  impugned  contract,  or  to  accept  the  certificate  of  the 
authorities  of  the  Church  as  conclusive.  Nor  did  the  new 
distinctness  of  the  Church  secure  it  against  the  interference 
of  the  civil  magistrate  even  within  its  own  sphere  of  action  ; 
the  appel  comme  d'abus,  which  in  the  medieval  system  im- 
ported a  jealous  guarding  of  the  limits  of  two  jurisdictions 
within  one  community,  became  an  instrument  restraining  the 
separate  activities  of  the  Church  ; x  In  these  two  ways  the 
various  judiciaries  of  the  kingdom  took  cognizance  of  mar- 
riage, and  new  royal  ordonnances  were  soon  found  to  be 
required  for  guidance. 

A  theory,  juristic  and  theological,  was  framed  for  the 
defence  of  this  legislation.  The  contract  of  marriage  was 
distinguished  from  the  sacrament ;  as  contract  it  was  tem- 
poral and  subject  to  civil  law  ;  as  sacrament  it  was  spiritual, 
and  subject  only  to  the  laws  of  the  Church.  To  the  king,  as 
head  of  the  State,  was  attributed  the  power  of  regulating  the 
contract,  of  imposing  conditions  neglect  of  which  would 
nullify  it,  and  of  judging  its  validity  ;  impediments  created 


1  Pothier,  Traite  du  Contrat  de  Manage,  torn,  ii.,  p.  176,  records 
an  arret  of  Jan.  2,  1758,  quashing  the  dissolution  of  a  Jewish  mar- 
riage decreed  by  the  Official  of  the  diocese  of  Soissons  on  the  ground 
of  the  privilegium  Paulinum.  It  should  be  observed  that  the 
Codtume  de  Paris  is  law  in  Canada,  and  these  extensive  powers  of 
the  civil  courts  in  ecclesiastical  matters  are  still  exercised. 


SEPARATION  OF  CHURCH  AND  STATE     195 

by  ecclesiastical  law,  and  judgments  of  nullity  pronounced 
by  ecclesiastical  authority,  were  properly  concerned  with 
the  sacrament  alone,  and  could  not  affect  the  contract 
except  just  so  far  as  they  were  allowed  or  adopted  by  the 
civil  power.  This  contention,  it  will  be  seen,  implies  not 
merely  a  logical  distinction  between  marriage  as  arising  out 
of  a  natural  contract  and  marriage  as  raised  to  the  super- 
natural value  of  a  sacrament,  but  also  the  possibility  of  a 
real  separation  in  fact ;  there  might  be  a  valid  contract  of 
marriage  between  Christians  which  would  not  have  sacra- 
mental effect,,  and  there  might  exist  a  sacramental  marriage 
that  was  not  founded  on  a  valid  contract.  The  distinction 
had  been  pressed  by  Melchior  Cano  and  other  theologians 
before  the  Council  of  Trent ;  practical  conclusions  were  now 
drawn  from  it  by  French  jurists.  Billuart,  accepting  the 
distinction,  tried  to  avoid  the  consequences,  by  showing  that 
the  sacrament  does  in  fact  depend  upon  the  contract. 
"  Sacramentum  matrimonii,"  he  said,  "  nihil  aliud  est  quam 
contract  us  civilis  elevatus  ad  esse  sacramenti."  1  But  in 
calling  the  contract  civilis,  rather  than  naturalis,  he  did  but 
tender  a  fresh  handle  to  his  opponents,  who  were  not  slow 
to  argue  that  a  civil  contract  must  be  entirely  subject  to  the 
laws  of  the  State,  the  Church  being  concerned  only  with  the 
sacramental  effects  flowing  from  its  valid  completion.  So 
Pothier,  who  in  the  style  of  the  eighteenth  century  read  the 
ideas  of  his  own  time  into  the  institutions  of  the  Middle  Ages, 
and  attributed  the  legislative  and  judicial  control  of  marri- 
age by  the  Church  to  a  revocable  permission  accorded  by  the 
Prince.21  The  influence  of  Pothier  was  great ;  he  formed  the 


1  Billuart,  Summa  Summae,  torn,  vi.,  p.  343.    But  see  p.  54,  supra. 

2  Pothier,  op.  cit.,  torn,  i.,  p.  29  :    "  Le  mariage   n'etant  somnis 
a  la  puissance  ecclesiastique  qu'en  tant  qu'il  est  sacrament,  et  n'e"tant 
aucunement  soumis  a  cette  puissance  en  tant  que  contrat  civil,  less 
empe"chements   qu«  1'Eglise   etablit,    seuls   et   par   eux-me"mes,    n* 


196     OF  MARRIAGE  IN  THE  MODERN  STATE 

opinion  which  grew  to  action  during  the  Revolution,  and  his 
disciple  Portalis,  inventor  of  the  doctrine  that  the  cure  was 
a  minister  at  once  of  the  State  in  regard  to  the  contract  and 
of  the  Church  in  regard  to  the  sacrament,  had  a  prominent 
part  in  the  preparation  of  the  Code  Napoleon. 

Before  the  Revolution,  however,  royal  ordonnances  re- 
garding marriage  were  carefully  drawn  to  avoid  direct 
conflict  with  the  sacred  canons  ;  they  were  supplementary, 
or  even  ancillary.  Some  ingenuity  was  at  times  expended 
on  conciliation  ;  thus  an  ordonnance  for  annulling  marriages 
contracted  without  parental  consent  was  made  to  coincide 
with  the  canonical  impediment  of  raptus.  Not  altogether 
out  of  keeping  with  this  caution  was  an  order  of  the  year 
1787  appointing  a  special  mode  of  marriage  for  Protestants, 
who  since  the  revocation  of  the  Edict  of  Nantes  had  lost 
their  privileges  and  had  become  subject  to  the  general  law 
of  the  kingdom ;  for  the  concession  was  cloaked  as  the  ex- 
clusion of  heretics  from  a  right  to  command  the  services  of 
a  parish  priest.  But  the  practice  then  established  was 
speedily  made  a  precedent  for  wider  legislation.  Calvinism 
and  Jansenism,  surviving  long  and  severe  repression,  be- 
came singularly  active  influences  in  the  course  of  the  Revo- 
lution. Calvinists  had  always  regarded  marriage  as  being 
within  the  province  of  the  State  ;  Jansenists  were  imbued 
with  the  Gallican  doctrine  distinguishing  the  contract  and 
the  sacrament ;  both  contributed  to  the  establishment  of 
civil  marriage  in  the  first  year  of  the  Republic. 


peuvent  concerner  que  le  sacrament,  et  ne  peuvent  seuls  et  par 
eux-m&nes  donner  atteinte  au  contrat  civil.  Mais  lorsque  le  Prince, 
pour  entretenir  le  concert  qui  doit  etre  entre  le  sacerdoce  et  I'empire, 
a  adopte  et  fait  recevoir  dans  ses  Etats  les  canons  qui  etablissent 
ces  empechements,  1'approbation  que  le  Prince  y  donne  rend  les 
empSchements  etablis  par  ces  canons  empSchements  dirimants  de 
mariage,  me" me  comme  contrat  civil." 


CIVIL  MARRIAGE   IN   FRANCE  197 

France  led  the  way  rather  in  thought  than  in  action,  for 
already  in  the  year  1783  the  Emperor  Joseph  II  had  promul- 
gated decrees  of  this  kind  for  his  hereditary  dominions,  and 
in  1786  the  diocesan  synod  of  Pistoia  had  called  upon  his 
brother  Leopold  to  do  the  same  for  Tuscany.  In  France 
the  Constitution  of  1791  clearly  denned  the  attitude  of  the 
State  :  "  La  loi  ne  considere  le  mariage  que  comme  contrat 
civil/'  This  declaration  of  Gallicanism  was  the  more 
generally  welcome  since  the  adoption  of  the  Civil  Constitu- 
tion of  the  Clergy  in  the  preceding  year  had  worked  to  the 
serious  disadvantage  of  strict  Catholics.  "  A  heavy  blow 
was  struck  at  their  religious  liberty,"  says  M.  Paul  Viollet, 
"  for  in  order  to  be  married  they  were  obliged  to  have  re- 
course to  priests  who  had  taken  the  oath,  that  is  to  say  to 
schismatics." 1  It  was  not,  however,  until  September, 
1792,  that  the  law  was  actually  modified.  Then,  amid  the 
scenes  of  confusion  which  accompanied  the  dissolution  of 
the  Legislative  Assembly  and  the  meeting  of  the  Convention, 
two  laws  were  hurriedly  enacted  which  had  an  ultimate 
effect  reaching  far  beyond  the  borders,  however  widely 
extended,  of  the  French  republic  or  empire. 

The  first  established  a  civil  ceremony  of  marriage  to  be 
performed  under  strict  conditions  by  a  public  officer  of  the 
commune  within  which  the  parties,  or  one  of  them,  should 
reside.  The  religious  character  of  the  contract  was  merely 
ignored ;  a  religious  ceremony,  a  sacerdotal  benediction, 
was  neither  expressly  allowed  nor  forbidden.  The  legal 
validity  of  the  marriage  was  to  be  determined  exclusively 
by  the  civil  ceremony. 

The  second  introduced  a  still  more  novel  practice  of 
divorce,  based  in  part  on  the  Roman  Law,  in  part  on  the 
Calvinistic  doctrines  of  the  school  of  Leyden.  Canonical 

1  Cambridge  Modern  History,  vol.  viii.,  p.  736. 


198     OF  MARRIAGE   IN  THE  MODERN  STATE 

divorce  a  mensa  et  toro  was  forbidden,  and  there  was  sub- 
stituted a  complete  dissolution  of  marriage,  leaving  the 
parties  free  to  contract  fresh  alliances.  This  was  to  be 
decreed  by  a  tribunal,  either  for  certain  specified  causes  or 
with  the  mutual  consent  of  the  parties.  Among  the  causes 
were  insanity,  a  sentence  of  crime  involving  infamy,  noto- 
rious immorality,  desertion  for  two  years,  and  incompati- 
bility of  temper  or  character. 

In  this  sinister  fashion,  and  in  the  most  sinister  circum- 
stances, the  modern  State  first  took  entire  and  independent 
control  of  marriage.  The  Church  was  thrust  aside  with  a 
contempt  which  soon  passed  into  enmity.  Yet  the  law  of 
compulsory  civil  marriage  for  the  moment  afforded  relief 
to  the  harassed  Catholics.  The  Tridentine  decree  enabled 
them  to  regard  the  civil  ceremony  as  of  no  effect  in  consti- 
tuting a  true  marriage.1  They  were  therefore  set  free  to 
marry  according  to  the  rule  of  the  Church  in  the  presence 
of  a  priest  who  had  not  taken  the  constitutional  oath,  and 
could  treat  the  visit  to  the  communal  officer  as  a  mere 
registration  of  their  marriage  for  legal  purposes.  The  diffi- 
culties arising  from  the  persecution  which  broke  out  in  the 
following  year,  and  from  the  prohibition  of  Christian  worship 
under  the  Terror,  were  purely  accidental.  But  the  Articles 
Organiques  appended  by  Napoleon  to  the  Concordat  of 
1802  put  a  restraint  on  liberty.  The  civil  ceremony  re- 
mained compulsory,  and  it  was  forbidden  under  severe 
penalties  to  perform  any  religious  ceremony  of  marriage 
until  this  had  taken  place.  The  intention  was  to  enforce 
the  Gallican  theory  and  to  compel  the  Church  to  accept  the 
civil  ceremony  as  the  true  contract  of  marriage,  adding  the 
nuptial  benediction  as  the  matter  of  the  sacrament.  This 
end  was  not  achieved  ;  the  Church  held  firmly  by  the  Tri- 

1  See  Boudinhon,  Canoniste  Contemporain,  Sept.,  1907,  p.  540. 


CIVIL  MARRIAGE  IN   EUROPE  199 

dentine  rule,  the  civil  ceremony  was  treated  as  a  nullity, 
and  the  contract  in  facie  ecclesiae  which  followed  was 
regarded  as  alone  effective. 

These  provisions,  with  others  regulating  the  relations  of 
the  married,  were  incorporated  into  the  Civil  Code  of  1804, 
the  widespread  influence  of  which  brought  them  into  the 
legislation  of  many  countries.  The  requirement  of  a  civil 
ceremony,  and  the  prohibition  of  any  religious  ceremony 
preceding  it,  have  been  adopted  in  Belgium  and  the  Nether- 
lands, in  Switzerland,  Italy  and  Hungary,  in  the  greater 
part  of  Germany,  and  in  many  of  the  Latin  Republics  of 
America.  In  Spain,  in  Austria,  and  in  the  Scandinavian 
Kingdoms,  civil  marriage  is  established  for  the  benefit  of 
those  who  refuse  the  services  of  the  Church,  but  is  not  ob- 
ligatory. In  Roumania,  by  a  combination  of  Eastern  and 
Western  ideas,  there  is  appointed  a  civil  form  of  espousal 
which  must  be  followed,  save  in  exceptional  cases,  by  a 
sacerdotal  benediction. 

England  once  more  calls  for  special  remark  in  this  con- 
nexion. The  repeal  of  the  Test  Act  in  the  year  1828  marks 
the  definite  separation  of  Church  and  State,  but  the  change 
was  carried  out  in  the  national  fashion  with  little  attention 
to  logic  or  formula,  and  no  attempt  was  made  to  reduce  the 
new  order  of  things  to  an  intelligible  system.  In  particular 
the  administration  of  marriage  was  left  for  a  time  to  the 
spiritual  courts,  without  any  clear  delimitation  of  powers. 
The  State,  disentangled  from  ecclesiastical  interests  by 
means  of  a  sharp  struggle  in  which  the  hierarchy  had  ob- 
stinately resisted  change,  adopted  an  unreasonably  arrogant 
tone,  and  treated  the  Church  rather  as  an  insubordinate 
servant  than  as  a  co-ordinate  society.  The  Church,  steeped 
in  the  tradition  of  Richard  Hooker,  resented  the  separation, 
desired  no  independence,  and  fought  tenaciously  for  the 
remaining  shreds  of  a  privilege  that  was  proper  to  a  vanished 


200     OF  MARRIAGE  IN  THE  MODERN  STATE 

political  order.  Thus  Dissenters,  though  now  admitted  to 
full  political  rights  on  equal  terms,  were  not  immediately 
relieved  of  their  grievance  in  regard  to  the  marriage  laws, 
being  still  compelled  to  resort  to  the  parish  church  for  an 
unwelcome  ceremony,  and  to  the  bishops'  and  archbishops' 
courts  for  the  determination  of  matrimonial  causes.  After 
a  period  of  active  reform  in  other  fields  the  former  "of  these 
difficulties  was  taken  in  hand.  In  the  year  1836  a  new 
Marriage  Act  made  a  new  and  lop-sided  arrangement  ;  a 
system  of  civil  registration  was  adopted  ;  parties  desiring 
to  do  so  were  allowed  to  contract  marriage  without  any 
ceremony  in  the  presence  of  a  Superintendent  Registrar,  after 
a  very  inadequate  publication  of  their  intention,  or  even 
without  such  publication  by  licence  of  the  registrar  ;  the 
parochial  clergy,  at  the  same  time,  were  required  to  keep 
duplicate  registers  of  marriages  solemnized  in  Church,  one 
of  which  was  eventually  to  be  deposited  with  the  Registrar 
General,  and  to  send  to  the  Superintendent  Registrar  of  the 
district  certified  copies  of  the  entries  every  three  months. 
The  clergy  were  thus  made  definitely  ministers  of  the  State 
for  the  purpose  of  marriage,  and  they  were  not  relieved  of 
the  obligation,  formerly  imposed  on  them  as  the  only  qualified 
persons,  of  assisting  at  the  marriage  of  any  parties  demand- 
ing their  services,  orthodox,  heretic,  or  infidel.  They  were 
still  distinguished  by  a  privilege,  partly  onerous  and  partly 
honorific,  from  other  ministers  of  religion ;  and  this  in- 
equality was  not  redressed  until  the  year  1898,  when  the 
minister  of  any  regular  place  of  worship  certified  to  the 
Registrar  General  was  permitted  to  solemnize  marriages 
under  similar  conditions.  In  England,  then,  civil  marriage 
and  religious  marriage  exist  side  by  side,  with  universal 
civil  registration.  No  marriage  is  recognized  as  valid  which 
is  not  contracted  in  one  of  these  two  ways. 

Scotland  retains  intact  its  marriage  law  of  the  sixteenth 


EXTENSION   OF  DIVORCE  201 

century,  based  on  the  teaching  of  Leyden.  Ireland 
retains  with  very  little  alteration  the  Common  Law, 
identified  with  that  of  England,  according  to  which,  as 
we  have  seen,  the  witness  of  a  clerk  in  Holy  Orders  was 
requisite  for  a  valid  contract  of  marriage.  This  privilege 
is  limited  by  an  odious  provision,  belonging  to  the  penal 
laws  of  the  eighteenth  century,  by  which  the  marriage 
of  a  Papist  and  a  Protestant  cannot  be  validly  contracted 
in  the  presence  of  a  Papist  clergyman,  and  on  the  other 
hand  it  has  been  extended  to  ministers  of  all  religious  de- 
nominations. The  rule  of  the  common  law,  as  finally  deter- 
mined by  the  House  of  Lords  in  the  year  1844,  has  been 
applied  to  all  English  dominions  over  sea,  in  default  of  local 
legislation  modifying  it,  as  also  to  ships  under  the  British 
flag  ;  but  common  sense  and  necessity  have  compelled  the 
judicial  admission  that,  where  a  clergyman  cannot  be  pro- 
cured, a  contract  of  marriage  made  in  the  presence  of  other 
witnesses  will  suffice.1 

The  revolutionary  law  of  divorce  has  been  less  prolific 
than  the  law  of  civil  marriage.  Its  way  was  prepared  by 
the  teaching  and  practice  of  Protestants,  especially  in  the 
school  of  Leyden,  by  the  study  of  Roman  law,  and  by  the 
general  dissolution  of  morals  in  the  eighteenth  century. 
Its  provisions  were  tempered  in  the  Napoleonic  Code,  by 
which  separation  de  corps  without  dissolution  of  the  bond 
was  allowed  expressly  as  a  concession  to  Catholic  feeling, 
and  the  grounds  for  divorce  were  reduced  within  narrower 
bounds,  mutual  consent  being  retained.  The  law  was 
abrogated  in  the  year  1816,  and  not  revived  until  1884, 
when  the  provision  for  mutual  consent  was  omitted.  But 
the  influence  of  the  Code  was  felt  elsewhere,  even  while 
these  sections  were  suppressed  in  France,  and  the  idea  of 

1  Halsbury,  The  Laws  of  England,  vol.  xvi.,  p.  307. 


202     OF  MARRIAGE  IN  THE  MODERN  STATfi 

the  dissolubility  of  marriage  has  made  considerable  headway 
in  most  countries. 

I  have  shown  abundantly  that  permission  to  marry  after 
divorce  is  not  necessarily  based  on  this  idea  ;  it  may  be 
treated  as  a  dispensation  from  the  rigour  of   the  natural 
law  which  forbids  a  second  marriage  during  the  lifetime  of 
both   parties  to  a  valid  union.     But   nowhere  is  it   more 
plainly  seen  that  dispensation,  even  grudgingly  accorded, 
undermines  the  structure   of  law.    English  experience  is 
well  to  the  point.     We  have  seen  that  such  dispensations 
by  Act  of  Parliament  began  from  the  later  years  of  the 
seventeenth  century.     The  promise  that  they  should  not 
be  drawn  to  a  standing  precedent  proved  illusory,  and  what 
was  at  first  an  act  of  grace  came  to  be  regarded  as  a  right, 
which  might  not  be  denied  unless  in  exceptional  circum- 
stances.   A  regular  procedure  grew  up,  by  which,  at  enor- 
mous expense,  a  man  who  had  procured  a  canonical  divorce 
on  the  ground  of  his  wife's  adultery  could,  almost  as  a 
matter  of  course,  obtain  legal  permission  to  marry.     More- 
over, the  act  became  one  for  the  relaxation  of  the  bond  on 
both  sides,  so  that  the  guilty  wife  was  as  free  to  marry  as 
the  injured  husband,  and  public  opinion  not  only  allowed, 
but  even  encouraged,  her  union  with  the  partner  of  her 
guilt,  an  union  disallowed  by  laws  that  were  framed,  as  in 
Scotland,  under  Calvinist  influences.     The  merger  of  Church 
and  State  made   acquiescence  in  these  dispensations  in- 
evitable on  the  part  of  the  hierarchy,  the  parties  released 
were  married  without  difficulty  in  facie  ecclesiae,  and  the 
spiritual  courts,  which  in  accordance  with  the  sacred  canons 
had  exacted  of  them  a  bond  not  to  contract  matrimony, 
accepted  without  demur  their  discharge  from  that  obliga- 
tion by  authority  of  law.     There  was  thus  a  recognized 
consequence  of  divorce  which  made  mockery  of  the  natural 
indissolubility  of  marriage. 


DIVORCE   IN  ENGLAND  203 

But  the  procedure  was  open  only  to  the  wealthy,  and 
this  made  it  intolerably  odious.  It  was  based  also  on  the 
canonical  process,  and  in  the  course  of  the  nineteenth  cen- 
tury it  was  affected  by  a  slowly  growing  consciousness  of 
the  incongruity  of  an  arrangement  which  left  to  spiritual 
courts  the  juridical  control  of  marriage  in  a  State  that  was 
no  longer  identified  with  the  Church.  In  giving  sentence 
for  bigamy  on  a  labouring  man  a  judge  passed  on  this  state 
of  the  law  some  remarks,  caustic  and  unseemly,  but  entirely 
justified  by  the  facts,  which  were  widely  reported  and  served 
to  bring  matters  to  a  head.  The  result  was  seen  in  the 
Divorce  Act  of  1857.  A  new  court  of  the  Crown  was  estab- 
lished, to  exercise  the  jurisdiction  of  the  State  in  all  matri- 
monial causes,  with  power  to  make  five  different  decrees  :  a 
decree  of  nullity  of  marriage,  a  decree  in  the  cause  of  jacti- 
tation of  marriage,  a  decree  for  the  restitution  of  conjugal 
rights  on  the  petition  of  either  party,  a  decree  for  separation 
a  mensa  et  toro,  and  a  decree  of  dissolution  of  marriage. 
The  procedure  and  rules  in  respect  of  the  first  four  were 
taken  over  in  block  from  the  practice  of  the  ecclesiastical 
courts  ;  the  last  was  a  novelty.  To  the  establishment  of  this 
court  no  exception  could  be  taken  by  any  one  who  acknow- 
ledges the  right  of  the  State  to  a  jurisdiction  in  regard  to 
marriage  ;  the  adoption  of  the  existing  procedure  was  wise 
as  a  first  step,  but  the  general  confusion  of  thought  about 
the  relations  of  Church  and  State  caused  the  transaction  to 
be  regarded  as  a  complete  transfer  of  authority  from  the 
spiritual  courts  to  the  new  tribunal,  and  the  Church  was 
thus  left  without  any  machinery  at  work  for  the  administra- 
tion of  discipline. 

The  Divorce  Act  is  commonly  discussed  as  if  it  were  the 
last  word  of  legislation  upon  the  subject.  But  that  is  far 
from  being  the  case.  Apart  from  an  Act  of  Parliament 
giving  Justices  of  the  Peace  the  power  to  issue  Separation 


204     OF  MARRIAGE  IN  THE  MODERN  STATE 

Orders  which  are  effective  divorces  in  the  true  sense  of  the 
word,  and  a  Married  Women's  Property  Act  which  has  cor- 
rected an  inequality  of  the  Common  Law  by  a  greater  in- 
equality in  the  inverse  sense  and  further  weakened  the  com- 
munity of  married  life,  we  have  to  reckon  with  the  more 
subtle  changes  effected  by  custom  and  by  jurisprudence. 
Two  of  these  are  of  the  greatest  importance.  In  com- 
paratively recent  days  a  separation  deed  executed  by  hus- 
band and  wife  has  come  to  be  recognized  at  law,  and  its 
provisions  will  be  enforced.1  There  is  here  a  complete 
reversal  of  the  older  jurisprudence,  prevailing  in  almost  all 
systems  of  law,  by  which  husband  and  wife  were  com- 
pelled on  grounds  of  public  policy  to  live  together,  failing 
a  judicial  divorce,  in  fulfilment  of  the  social  duties  of  mar- 
riage. The  explanation  is  evident.  There  is  lurking  in 
the  public  mind  a  conception  of  marriage  as  a  mere  con- 
tractual relation  between  the  parties,  with  which  the  State 
has  no  concern  except  for  the  purpose  of  seeing  that  they 
do  no  wrong  to  each  other.  The  idea  of  marriage  as  a 
public  institution,  the  foundation  of  social  order,  is  dis- 
appearing from  view.  If  we  are  to  call  things  by  their  right 
names,  we  must  recognize  the  effect  of  these  deeds  of  separa- 
tion, legally  enforceable,  as  divorce  by  mutual  consent 
freely  allowed  without  judicial  safeguards.  But  the  relaxa- 
tion of  jurisprudence  does  not  stop  here.  Of  recent  years, 
since  the  occurrence  of  a  notable  case  of  attempted  abuse, 
there  has  been  no  enforcement  of  a  decree  for  restitution  of 
conjugal  rights,  and  it  is  openly  avowed  that  nothing  of  the 
kind  will  be  allowed ;  a  decree  is  now  sought  only  for  the 
purpose  of  establishing  legal  desertion.  Again  calling 
things  by  their  true  names,  we  must  describe  this  as  judicial 
permission  of  divorce  at  the  will  of  either  party.  Husband 

1  Halsbury,  The  Laws  of  England,  vol.  xvi.,  p.  439. 


CIVIL  IMPEDIMENTS  205 

or  wife  is  definitely  allowed  to  repudiate  the  duties  of  mar- 
riage, and  to  withdraw  from  the  common  life.  The  English 
law  of  marriage  and  divorce  has  thus  become  perhaps  the 
most  lax  in  the  world.  The  importance  of  this,  in  view  of 
the  growing  demand  for  freedom  to  marry  after  any  kind 
of  legal  separation,  can  hardly  be  exaggerated. 

The  legislation  of  the  State  has  naturally  touched  im- 
pediments. The  distinction  of  obstructive  and  diriment 
has  been  generally  done  away,  a  marriage  being  in  some 
cases  rendered  void  by  the  neglect  even  of  a  trifling  for- 
mality. Impediments  purely  civil  are  encountered  in 
France  as  early  as  the  seventeenth  century,  and  their  effect 
was  recognized  by  the  Church  ;  a  certificate  of  publication 
of  banns  stated  that  no  such  impediment  was  alleged.1  In 
England  the  effective  separation  of  Church  and  State  was 
soon  followed  by  fresh  legislation  concerning  consanguinity 
and  affinity,  which  took  up  the  sorry  tale  of  the  sixteenth 
century.  Lord  Lyndhurst  revived  the  traditions  of  Henry 
VIII  and  solved  some  difficulties  of  a  ducal  house  by  pro- 
curing in  1835  the  statutory  adoption  of  the  whole  of  Par- 
ker's Table,  with  the  provision  that  the  forbidden  unions 
should  be  not  merely  void  in  the  canonical  sense,  or  voidable 
by  course  of  law,  but  simply  non-existent  or  void  without 
process.  In  1907  a  logically  consistent  scheme  was  shat- 
tered, in  consequence  of  the  agitation  of  some  wealthy 
people,  by  the  excision  of  one  detail,  and  marriage  with  a 
wife's  sister  was  made  in  most  cases  legally  valid.  As  ex- 
plained above,  ecclesiastical  dispensations  are,  with  little 
consistency,  retained  for  the  removal  of  certain  impedi- 
ments within  the  ambit  of  civil  law. 

Surveying  the  present  position  as  a  whole,  we  see  every- 

1  Rituel  du  Diocdse  d'Alet,  5th  ed.,  p.  555.  "  II  ne  s'est  decouvert 
aucun  empeschement,  ou  canonique  ou  civil,  qui  empesche  qu'on 
ne  puisse  proceder  a  la  celebration  de  leur  mariage." 


206     OF  MARRIAGE   IN  THE  MODERN   STATE 

where  a  divergence  of  Church  and  State  in  respect  of  the 
law  of  marriage,  which  not  unfrequently  begets  direct  an- 
tagonism. I  have  shown  that  conflict  is  not  inevitable 
where  two  different  systems  of  human  law  are  applicable 
to  the  same  persons.  Adjustment  is  possible  ;  even  where 
no  care  is  taken  to  avoid  collision,  it  may  happen  that 
obedience  to  one  law  will  not  hinder  the  observance  of  the 
other.  A  striking  example  of  adjustment  is  seen  in  the 
case  of  the  compulsory  civil  marriage  of  France  and  Italy. 
The  adoption  of  the  Tridentine  rule  in  these  countries 
enables  the  Church  to  disregard  the  civil  ceremony  as  an 
empty  formality,  and  the  parties  are  free  to  fulfil 
canonical  obligations  by  contracting  marriage  in  facie  eccle- 
siae.  Without  this  rule  it  is  evident  that  the  civil  marriage 
would  be  counted  valid  by  the  law  of  nature,  and  canonical 
marriage  would  be  made  impossible.  The  corresponding 
position  in  England  is  more  complicated.  It  may  be  taken 
for  a  general  truth  that  when  Church  and  State  fell  apart 
from  the  unitary  community  in  which  they  were  merged, 
each  was  equipped  with  the  whole  marriage  law  which 
they  had  previously  had  in  common.  So  the  English  State 
took  over  the  Canon  Law  as  actually  in  force,  and  subsequent 
legislation  has  but  modified  its  provisions.  Equally  the 
English  Church  must  have  taken  over  the  marriage  law  of 
the  country  as  it  existed  in  the  year  1828.  But  by  this 
law  no  marriage  was  counted  ordinarily  valid  unless  con- 
tracted with  all  the  formalities  of  the  ecclesiastical  ceremony. 
The  English  Church  thus  had  a  law  identical  with  that  of 
the  Eastern  Church.  Is,  then,  the  civil  form  of  contract 
introduced  in  1836  to  be  reckoned  invalid  for  the  purposes 
of  ecclesiastical  discipline  ?  At  first  this  would  seem 
inevitably  to  follow,  and  such  marriages  were  commonly 
reckoned  void  by  the  clergy,  the  parties  being  urged  to  regu- 
late their  union  by  a  ceremony  in  facie  ecclesiae.  But  the 


ANTAGONISM  OF  CHURCH  AND  STATE     207 

clergy  were  officers  of  the  State  for  the  purpose  of  registra- 
tion, and  the  entry  of  such  marriages  in  their  registers 
brought  them  into  serious  conflict  with  the  law,  and  in  one 
case,  at  least,  into  imminent  danger  of  severe  punishment. 
It  was  at  length  settled,  with  legislative  sanction,  that  they 
might  perform  the  ecclesiastical  ceremony  on  condition 
that  nothing  was  said  or  done,  as  by  registration,  to  im- 
pugn the  legal  validity  of  the  contract  made  before  the 
registrar.  In  the  meantime  the  spiritual  courts,  hampered 
by  the  legal  jurisdiction  still  vested  in  them,  either  willingly 
or  of  constraint  accepted  the  civil  contract  as  sufficient. 
The  situation  was  confused,  but  opposition  to  the  new  form 
of  marriage  insensibly  diminished,  the  superior  authorities 
of  the  Church  discouraging  it,  and  it  may  be  said  with  con- 
fidence that  by  the  operation  of  canonical  custom  the  law 
which  made  it  void  has  now  gone  into  desuetude. 

But  the  effect  of  this  desuetude  must  be  considered. 
It  amounts  to  the  abrogation,  for  ecclesiastical  purposes,  of 
the  Marriage  Acts  of  1753  and  1823.  In  so  far  as  tnev  are 
marriage-officers  of  the  State,  the  clergy  are  strictly  bound 
by  the  later  of  those  Acts,  but  I  am  now  concerned  with 
their  purely  spiritual  function  and  their  dealings  with  in- 
dividual members  of  the  Church.  In  this  respect  the  Acts 
are  obsolete.  It  is  not  that  they  are  amended  by  the  Mar- 
riage Act  of  1836,  for  this  cannot  be  construed  as  a  legis- 
lative act  of  the  Church  ;  it  is  not  that  one  other  form  of 
marriage,  authorized  by  the  State,  is  accepted  as  ecclesias- 
tically valid.  By  the  canonical  abrogation  of  the  Marriage 
Acts  the  Church  is  thrown  back  on  the  natural  law  prevailing 
before  they  were  adopted.  It  follows  that  a  marriage  con- 
tracted before  a  Superintendent  Registrar  is  valid,  not  be- 
cause of  the  legal  formalities  observed,  but  because  it  is  a 
contract  per  verba  de  praesenti  in  accordance  with  the  Law 
of  Nature.  Equally  will  every  other  marriage  so  con- 


208     OF  MARRIAGE  IN  THE  MODERN  STATE 

tracted  be  valid  for  spiritual  purposes.  If  this  conclusion 
is  sound,  and  I  can  see  no  escape  from  it,  the  Church  may 
be  obliged  to  recognize  as  valid,  and  binding  on  the  con- 
sciences of  the  parties,  a  clandestine  marriage  which  the 
State  will  regard  as  void.  It  will  have  no  legal  effect,  but 
will  be  matrimonium  conscientiae.  In  such  cases  it  will  be 
the  duty  of  the  Church,  in  accordance  with  canonical  prac- 
tice, to  call  upon  the  parties,  failing  dispensation,  to  renew 
their  contract  in  facie  ecclesiae.  A  conflict  of  laws  would 
thus  be  averted  ;  but  cases  may  remain,  as  when  a  person 
morally  bound  by  such  a  contract  has  formed  another 
alliance  with  public  formalities,  which  will  involve  a  serious 
antagonism  between  the  rules  of  the  Church  and  the  laws 
of  the  State. 

More  obvious  are  the  possibilities  of  discord  arising  out 
of  divergent  rules  about  impediments.  I  have  endeavoured 
to  show  that  the  right  of  the  State  to  create  impediments 
cannot  be  impugned,  and  that  such  impediments  should 
be  respected  by  the  Church.  We  have  seen  the  French 
Church  so  acting  in  the  seventeenth  century.  If  there  were 
reciprocal  action  on  the  part  of  the  State,  if  members  of  the 
Church  were  not  allowed  to  contract  a  legal  marriage  con- 
trary to  the  rules  of  the  Church,  there  would  be  no  conflict. 
But  there  seems  to  be  no  prospect  of  such  agreement.  It 
follows  that  legal  marriages  will  be  contracted  which  the 
Church  cannot  regard  as  valid  for  spiritual  purposes.  The 
difficulty  is  acute  in  England  at  the  present  moment  in 
regard  to  marriage  with  a  deceased  wife's  sister.  The  legal 
effect  of  such  a  marriage,  and  the  legal  obligations  ensuing, 
are  indisputable  ;  it  would  seem  to  be  improper  for  the 
Church  to  encourage  either  of  the  parties  to  repudiate  or 
evade  those  obligations,  but  at  the  same  time  it  seems  abso- 
lutely necessary  to  urge  as  a  religious  duty  a  separatio  cor- 
porum.  As  row  administered,  the  law  recognizes  this  if 


ANTAGONISM  OF  CHURCH  AND  STATE     209 

carried  out  by  mutual  consent,  and  tolerates  it  when  effected 
by  either  party,  so  that  active  collision  between  Church 
and  State  need  not  be  feared.  A  graver  trouble  comes  of 
the  persistent  refusal  of  many  Englishmen  to  recognize  the 
real  separation  of  Church  and  State,  and  the  existence  of  a 
rule  of  the  Church  divergent  from  the  law  of  the  State.  The 
ecclesiastical  celebration  of  any  marriage  allowed  by  law 
is  imperiously  demanded,  and  the  right  of  the  Church  to 
censure  its  members  who  contract  a  forbidden  union  is 
openly  impugned. 

Graver  still,  and  more  frequent,  are  the  possibilities  of 
conflict  arising  from  the  practice  of  divorce.  I  have  shown 
that  divorce  may  best  be  considered  in  the  category  of  dis- 
pensation, as  a  permission  to  withdraw  from  the  chief  obliga- 
tions of  the  married  state,  and  that  permission  to  marry  after 
divorce,  whether  described  as  dissolution  of  marriage  or  not, 
may  usually  be  reduced  to  a  further  dispensation,  removing 
an  impediment.  The  former  kind  of  dispensation  seems  to 
be  certainly  within  the  province  of  the  State  ;  the  latter 
may  be  doubtfully  allowed.  But  the  Church  also  has  rules 
for  its  own  members  ;  the  grounds  for  a  divorce  authorized 
by  the  State  may  be  such  as  the  Church  cannot  approve, 
and  a  dispensation  for  remarriage  may  be  without  exception 
reprobated.  That  is  the  case  alike  in  France  and  in  Eng- 
land, the  two  countries  where  contention  is  sharpest.  I  will 
not  speak  of  the  United  States,  where  ecclesiastical  confu- 
sion may  compel  a  sectarian  treatment  of  the  question.  The 
trouble  is  not  great  where  divorce  only  is  concerned,  though 
the  Church  may  sometimes  be  bound  to  rebuke  and  censure 
those  who  separate  themselves  in  course  of  law.  Remar- 
riage, and  the  assertion  of  a  total  dissolution  of  the  bond, 
is  the  difficulty.  It  is  double  ;  the  Church  condemns  two 
things  which  the  law  allows,  must  censure  any  one  of  its 
members  who  seeks  a  decree  of  dissolution,  and  censure  yet 
M.C.S.  p 


210     OF  MARRIAGE  IN  THE  MODERN  STATE 

more  severely  one  who  proceeds  to  a  new  marriage  ;  in  this 
case  also,  when  the  wrong  has  been  done,  sepamtio  cor- 
porum  must  be  made -a  condition  of  absolution.  In  this 
case  also  an  insistent  demand  for  the  connivance  of  the 
Church  must  encounter  stern  refusal.  Conflict  is  inevit- 
able, and  any  extension  of  the  practice  of  divorce  will  widen 
the  field. 

Yet  it  may  be  curiously  observed  that  an  extreme  exten- 
sion might  on  the  contrary  lessen  the  difficulties  of  the 
Church.  There  is  a  demand  for  a  law  of  divorce  allowing 
the  dissolution  of  marriage,  "  either  by  mutual  consent  or 
at  the  finally  expressed  will  of  either  party." 1  That  would  be, 
in  effect,  a  return  to  the  last  state  of  Roman  or  Jewish  law, 
and  it  is  not  impossible.  Should  such  a  law  be  adopted, 
there  would  arise  a  grave  question  whether  unions  contracted 
in  accordance  with  its  provisions  could  be  regarded  as  true 
marriages  at  all,  for  an  agreement  of  man  and  woman  to 
live  together  during  pleasure  is  not  a  contract  of  marriage. 
To  be  precise,  it  is  a  contract  of  concubinage.2  The  con- 
tract may  be  recognized  by  law,  its  terms  may  be  enforced 
by  law,  the  position  of  children  born  of  such  an  union  may  be 
secured  by  law,  but  it  is  doubtful  whether  any  legal  regula- 
tion can  make  the  relation  of  the  parties  true  marriage.  If 
the  laws  of  a  State  be  taken  as  a  connected  scheme,  and  if  in 
that  scheme  what  is  called  marriage  be  treated  as  a  mere 
partnership  dissoluble  by  mutual  consent  or  at  the  will  of 
either  party,  it  may  seem  that  a  contract  made  in  form  of  law 
will  be  governed  by  the  implications  of  the  law,  and  will 
have  no  effect  beyond  what  the  law  contemplates.  Civil 

1  Kitchin,  A  History  of  Divorce,  p.  270. 

*  One  can  hardly  concur  with  the  judgment  of  Pothier,  op.  cit., 
torn,  i.,  p.  7,  that  Roman  concubinage  was  a  species  of  true  marriage. 
"  L'autre  espece  de  mariage,"  he  says,  "  qu'on  appelloit  concubinatus , 
etoit  aussi  un  veritable  mariage." 


ANTAGONISM  OF  CHURCH  AND  STATE      211 

marriage  will  then  be  no  real  marriage,  but  legal  concubin- 
age ;  either  party  will  be  free,  in  conscience  as  in  law,  to 
break  off  the  connexion.  The  task  of  the  Church  will  then 
be  simplified  ;  real  marriage  will  be  a  thing  of  which  the 
State  has  no  cognizance,  and  its  regulation  will  fall  exclu- 
sively into  the  hands  of  the  Church  and  of  kindred  societies. 
It  is  true  that,  even  under  such  conditions,  the  parties  them- 
selves might  contract  true  marriage  in  the  form  of  the  civil 
procedure,  but  the  validity  of  the  marriage  and  the  conse- 
quent moral  obligations  would  depend  on  their  personal 
intention,  not  on  the  legal  formalities  ;  if  they  understood 
the  contract  to  be  one  of  true  marriage,  and  intended  a  life- 
long union,  they  would  certainly  be  married  according  to  the 
Law  of  Nature  ;  but  this  fact  would  have  to  be  ascertained 
by  particular  evidence,  as  in  the  case  of  a  clandestine 
marriage.  I  do  not  pretend  to  solve  so  knotty  a  pro- 
blem, leaving  it  to  the  judgment  of  the  Church  in  case  the 
need  should  arise.  A  doubt  of  this  kind  may  possibly  ac- 
count for  those  hesitations  of  St.  Augustine  about  the 
binding  effect  of  Roman  marriage  to  which  I  have  called 
attention. 

The  task  of  the  Church  might  be  simplified,  as  I  have  said, 
in  this  way  ;  but  no  good  Christian  would  wish  to  find  relief 
from  present  difficulties  in  the  disappearance  of  the  divinely 
natural  institution  of  marriage  from  the  laws  of  his  country. 
A  wider  divergence  of  Church  and  State  might  diminish 
friction,  but  it  would  aggravate  the  moral  evil  caused  by  all 
such  divergence.  This  must  not  be  lightly  estimated. 
Legality  and  morality  can  be  clearly  distinguished  by  a  poli- 
tical philosopher,  but  by  the  common  sort  of  people  they  are 
pretty  sure  to  be  confused.  Manners  are  formed  or  modified 
by  legal  pressure  and  legal  laxity ;  a  conflict  between  the 
authority  which  appeals  to  conscience  and  the  authority 
which  directs  the  strong  arm  of  law  will  always  be  injurious 


212     OF  MARRIAGE  IN  THE  MODERN  STATE 

to  morals.     Peace  must  therefore  be  sought  without  sacrifice 
of  truth. 

To  seek  peace,  we  should  know  the  causes  of  conflict. 
Why  are  Church  and  State  antagonistic  in  regard  to  mar- 
riage ?  In  so  far  as  they  pursue  a  different  object,  they 
cannot  be  brought  together  ;  but  I  have  shown  that  even  so 
they  can  for  the  most  part  move  in  different  planes,  avoid- 
ing collision.  It  is  the  temper  of  antagonism  which  works 
most  mischief.  Why  this  temper  ?  It  is  rooted  in  history. 
The  separation  of  Church  and  State  has  not  been  altogether 
amicable.  In  regard  to  marriage  there  has  been  a  rivalry, 
each  endeavouring  to  secure  the  inheritance  of  its  legal  con- 
trol from  the  common  society  out  of  which  both  have 
emerged.  The  Church  has  parted  reluctantly  with  a  charge 
that  was  felt  to  be  too  sacred  for  any  other  guardian.  The 
State  has  an  abiding  suspicion,  not  altogether  unfounded, 
that  the  Church  will  intrigue  for  the  recovery  of  a  lost  pro- 
vince. I  have  been  drawn  here  to  the  use  of  abstractions 
and  personifications  which  must  be  employed  with  caution, 
but  they  stand  for  genuine  facts  of  modern  life.  Men  who 
direct  affairs  of  State,  lawyers  above  all,  occupy  this  out- 
look ;  ministers  of  the  Church,  and  theologians  in  particu- 
lar, have  this  weakness.  Nay,  one  man  himself  will  be 
swayed  this  way  and  that  as  he  exercises  alternately,  in 
high  or  low  degree,  the  functions  of  Statesman  and  of  Church- 
man. On  both  sides  there  is  jealousy;  the  more  acute 
where  the  severance  has  been  less  openly  avowed,  as  in  Eng- 
land, and  less  logically  complete.  While  the  Church  even 
seems  to  be  desirous  of  dictating  laws  to  the  State,  and  while 
the  State  resents  the  independent  action  of  the  Church, 
there  will  be  continual  strife  and  confusion  of  simple  minds. 

A  modus  vivendi  must  be  sought.  The  State  is  not  likely 
to  move  first,  nor  is  it  unseemly  for  the  Christian  Church  to 
take  the  lead  in  a  search  after  peace.  The  first  thing  neces- 


FUNCTION  OF  THE  CHURCH  213 

sary  seems  to  be  a  clear  delimitation  of  functions.  Precedents 
are  not  lacking.  For  many  centuries  the  hierarchy  had 
exclusive  control  of  marriage.  The  results  were  not  happy. 
Values  were  confused,  as  always  in  theocratic  government. 
But  for  a  still  longer  period  the  hierarchy  had  exercised  a 
limited  control  of  a  more  purely  spiritual  kind.  For  the  first 
ten  Christian  centuries  the  Church  was  gradually  drawing  to 
itself  the  power  which  it  eventually  grasped,  but  this  was 
built  on  a  foundation  of  another  kind,  which  survives  the 
ruin  of  the  superstructure.  The  permanent  element  is  the 
exercise  of  spiritual  discipline,  directing  by  appeals  to  the 
conscience  or  by  open  censure  the  conduct  of  the  faithful. 
This  was  overlaid,  and  almost  extinguished,  by  the  secular 
business  accruing  to  the  ecclesiastical  courts  in  the  Middle 
Ages.  Discharged  from  the  care  of  that  business,  the  Church 
may  resume  its  proper  functions.  They  may  be  more  care- 
fully guarded  than  in  earlier  times,  for  mistakes  are  recorded 
in  history,  and  the  false  moves  which  once  led  insensibly  to 
embarrassing  engagements  can  be  avoided.  If  it  is  made 
plain  that  the  Church  intends  nothing  but  the  direction  of 
conscience,  a  chief  cause  of  jealousy  and  misunderstanding 
will  be  removed. 

This  does  not  mean  that  the  Church  will  act  only  in  foro 
conscientiae.  Marriage  is  too  public  a  thing  to  be  referred 
thither  in  all  cases  alike.  It  belongs  to  the  social  order  of 
mankind,  and  the  Church  is  the  social  order  of  mankind 
raised  to  a  supernatural  power.  The  validity  of  the  contract, 
the  obligations  ensuing  thereon,  the  duties  of  the  married 
state,  the  relations  of  husband  and  wife,  are  matters  of 
public  notoriety,  in  regard  to  religion  as  well  as  in  regard  to 
civil  order.  The  Church  has  need  of  an  external  forum,  in 
which  matters  of  this  kind  may  be  publicly  determined. 
The  proceedings  should  be  in  reality,  as  once  in  form,  pro 
salute  animae.  The  Church  has  no  longer  to  determine  legal 


214     OF  MARRIAGE  IN  THE  MODERN  STATE 

consequences,  to  assert  legal  rights,  or  to  redress  wrong 
by  legal  remedies  ;  but  the  unwary  are  still  to  be  admonished, 
and  the  recalcitrant  are  still  to  be  censured,  that  they  may 
learn  not  to  offend.  Justice  requires  that  discipline  of  this 
open  kind  should  be  administered  with  those  safeguards 
which  are  secured  by  judicial  process.  If  the  Church  was 
overloaded  with  legalism  in  the  Middle  Ages,  it  is  possible 
to  go  too  far  in  the  opposite  direction. 

There  is  a  crying  need  of  a  suitable  forum  for  matrimonial 
causes  in  the  Church  of  England.  I  use  a  legal  term,  lest  I 
should  seem  to  be  evading  a  difficulty,  but  the  questions  in 
view  are  not  legal,  and  it  would  probably  be  wise  to  make  a 
sparing  use  of  legal  language  in  dealing  with  them.  For  this 
reason,  and  for  others,  the  existing  ecclesiastical  courts  are 
unsuited  for  the  task.  Their  traditions,  their  language, 
their  forms,  are  legal.  They  are  relics  of  the  medieval  polity 
that  has  passed  away.  Because  they  belonged  to  that  polity 
they  were  brought,  rightly  or  wrongly,  into  subjection  to 
the  Crown,  and  exposed  to  the  control  of  the  temporal  courts. 
A  limited  control  of  this  kind,  like  the  French  appel  comme 
d'abus,  is  neither  objectionable  nor  avoidable,  for  the  State 
is  the  natural  guardian  of  justice  ;  but  a  control  like  that 
exercised  in  England,  or  under  the  Coutume  de  Paris  which 
still  runs  in  a  part  of  Canada,  reduces  spiritual  disci- 
pline to  a  mere  department  of  law.  It  survives,  an  intoler- 
able anachronism,  to  deprive  ecclesiastical  courts  of  their 
most  important  characteristic.  It  would  be  futile  to  rely 
upon  tribunals  so  bound  by  the  laws  of  the  State  for  the 
administration  of  a  discipline,  the  essential  quality  of  which 
is  to  be  independent  of  those  laws.  What  seems  to  be  re- 
quired is  the  organization  ;by  episcopal  authority  of  a  peni- 
tential jurisdiction  which  may  deal  openly  with  questions 
of  marriage,  divorce,  and  other  elements  of  public  morality.1 

1  For  instances  of  an  Archbishoptdealing\vith  such  matters  "  plane 


FUNCTION   OF  THE  CHURCH  215 

Such  jurisdiction  would  need  no  sanction  but  that  of  the 
sacred  mission  of  the  Church,  and  no  support  but  that  of 
the  Christian  conscience.  The  law  of  the  State  would  pass 
it  by,  because  moving  in  a  different  plane. 

That  some  such  solution  will  be  found,  I  cannot  doubt.  It 
is  being  reached  in  countries  where  the  historic  causes  of 
jealousy  between  Church  and  State  are  least  operative.  It 
is  being  brought  on  by  force  of  circumstances  even  where  it 
is  least  sought.  In  this  connexion  the  recent  legislation  of 
the  Roman  Church  is  of  great  importance. 

The  constitution  of  the  Council  of  Trent  nullifying  clandes- 
tine marriages  was  made  as  for  united  Christendom,  but 
from  the  first  there  were  two  causes  hindering  its  universality. 
On  the  one  hand,  the  new  rule  was  to  have  effect,  by  order 
of  the  Council  itself,  only  in  places  where  it  was  expressly 
promulgated,  and  in  many  places  this  was  not  done.  On 
the  other  hand,  the  disruptive  forces  of  the  Reformation 
withdrew  a  large  part  of  Christendom  from  any  pretence  of 
submission  to  the  Council.  The  two  causes  worked  together, 
for  the  disruption  was  the  main  ground,  though  not  the  only 
ground,  for  abstaining  from  promulgation.  Many  difficul- 
ties ensued,  of  which  three  are  specially  noteworthy,  (i) 
Questions  arose  about  the  validity  of  marriage  contracted 
between  a  person  subject  to  the  new  rule  and  one  residing  in 
a  place  where  it  was  not  promulgated,  and  unexpected 
nullities  were  the  result.  This  trouble  was  acute  in  Germany, 
where  contiguous  parishes  were  not  unfrequently  under 
different  laws.  (2)  In  places  where  the  rule  was  promul- 
gated, it  was  held  binding,  according  to  canonical  precedent, 
on  all  the  baptized,  heretics  and  schismatics  included.  But 
in  some  of  these  places,  as  at  Malta,  canonical  marriage 

et  summarie  without  the  tedious  formalities  of  the  law,"  see  Strype's 
Parker,  pp.  144,  280. 


216     OF  MARRIAGE  IN  THE  MODERN  STATE 

was  until  recently  the  only  kind  of  marriage  recognized  by 
law.  Consequently  the  presence  of  the  parish  priest  was 
required  for  the  legal  marriage  even  of  heretics  and  schisma- 
tics. (3)  The  great  disruption,  and  the  ultimately  inevit- 
able toleration  of  heresy  and  schism,  brought  in  the  impedi- 
ment of  mixed  religion.  This  must  not  be  confused  with 
disparitas  cultus  ;  heresy  was  never  made  in  the  West,  as  in 
the  Eastern  Church,  a  diriment  impediment ;  it  has  been 
treated  only  as  obstructive,  and  there  grew  up  in  the  nine- 
teenth century  a  very  confused  practice  in  regard  to  dispen- 
sations and  the  conditions  on  which  they  might  be  granted. 
These  difficulties  were  increased  by  the  mobility  of  popula- 
tions in  recent  times,  and  after  long  debate  the  authorities 
at  Rome  revised  the  Trident ine  rule  to  suit  modern  circum- 
stances. This  was  done  by  the  decree  Ne  temere,  of  August, 
1907.  Subsequent  decrees  of  the  Holy  See  have  cleared 
away  some  doubts  or  obscurities,  and  the  new  rule  is  now 
fairly  clear.1 

Neglecting  many  details,  I  note  three  things  of  special 
interest  :  (i)  The  assistance  of  the  parish  priest  is  more 
strictly  defined  ;  his  merely  accidental  presence  as  witness  of 
the  contract  will  not  suffice  ;  he  must  be  called  in,  at  least 
implicitly,  and  asked  to  render  his  services  ;  he  must  himself 
demand  and  receive  the  consent  of  the  parties  ;  the  marriage 
will  be  invalid  if  he  is  put  to  constraint.  (2)  In  immediate 
peril  of  death,  if  the  assistance  of  the  priest  cannot  be  ob- 
tained, and  in  regions  where  for  a  month  or  more  his  pres- 
ence is  impossible,  the  parties  may  lawfully  and  validly  con- 
tract marriage  in  the  presence  of  two  witnesses.  (3)  The 
rule  extends  to  all  persons  "  baptized  in  the  Catholic  Church, 
or  converted  to  it  from  heresy  or  schism,"  provided  they  be 

1  For  the  text  see  App.  A.  For  a  full  commentary  see  Bou- 
dinhon,  Canonists  Contemporain,  1907-8, 


THE  DECREE  NE   TEMERE  217 

of  the  Latin  rite.  It  does  not  apply  to  Catholics  of  any 
Eastern  rite,  nor  to  any  who  are  "  acatholici,"  whether  bap- 
tized or  not.  Where  one  party  is  Catholic  and  the  other  is 
not,  it  holds  good  in  spite  of  any  dispensation,  unless  it  be 
otherwise  provided  by  the  Holy  See  for  any  particular  place 
or  region. 

Under  the  last  provision  the  German  Empire  seems 
to  be  exempt,  but,  so  far  as  I  am  aware,  no  other  place 
or  region.  The  operative  parts  of  the  decree  which  bear 
on  the  point  now  under  consideration  may  be  rapidly 
estimated.  The  first  has  the  effect  of  strengthening  the 
position  of  the  parish  priest,  and  therefore  extends  the 
impression,  already  produced  by  the  Tridentine  rule,  that 
the  state  of  marriage  is  created  by  the  intervention  of 
an  official.  The  second,  on  the  other  hand,  testifies  in 
principle  to  the  validity  of  a  marriage  contracted  according 
to  natural  law  without  such  intervention.  The  third  is  far 
more  important,  and  demands  careful  scrutiny. 

The  Tridentine  rule,  as  I  have  said,  was  by  intention  uni- 
versal, applying  to  all  Christians,  and  that  in  a  society  which 
did  not  tolerate,  except  sporadically  on  behalf  of  Jews, 
any  diversity  of  religion.  The  power  thus  to  legislate  was 
jealously  asserted  by  the  Roman  Church,  and  recognition 
was  for  a  long  time  reluctantly  accorded  even  to  patent 
facts  in  conflict  with  the  claim.  Even  now  the  conservative 
instinct  of  the  Court  of  Rome  forbids  any  change  of  language, 
and  the  decree  Ne  temere  is  conceived  in  terms  implying  that 
the  legal  effect  of  marriage  and  the  legitimation  of  offspring 
depend  upon  its  provisions.  But  in  its  final  clause  instant 
facts  are  at  last  recognized.  Exemptions  from  the  Triden- 
tine rule  were  merely  territorial ;  where  promulgated,  it 
was  meant  for  all  Christians  alike.  In  the  case  of  Ne  temere 
also  there  are  territorial  exemptions,  but  more  broadly  the 
decree  is  confined  in  express  terms  to  those  who  have 


218     OF  MARRIAGE  IN  THE  MODERN  STATE 

voluntarily  submitted  themselves  to  the  spiritual  rule  of  the 
Roman  pontiff.  It  does  not  extend  to  those  who  in  the 
language  of  the  Curia  are  termed  "  acatholici."  That  is  to 
say,  the  Church  of  Rome  withdraws  the  claim  to  control  the 
marriage  law  of  Christendom  at  large,  and  contents  itself 
with  the  disciplinary  control  of  those  who  submit. 

It  is  true  that  the  withdrawal  is  not  definitely  asserted. 
So  far  as  the  words  of  the  decree  go,  the  larger  claim  may  be 
reserved.  Indeed,  the  withdrawal  is  limited  by  a  refusal  to 
recognize  the  right  of  any  one  to  renounce  an  allegiance  once 
professed.  But  this  must  be  expected.  The  Court  of 
Rome,  with  its  vast  machinery  of  intricate  tradition,  moves 
slowly  even  in  the  recognition  of  obvious  facts.  It  is  much 
that  it  moves  at  all.  What  I  have  to  note  is  the  direction 
in  which  it  is  moving. 

I  have  this  also  to  note.  There  is  now,  I  believe,  no  coun- 
try in  which  the  canons  of  the  Roman  Church  regarding 
marriage  have  exclusive  legal  effect ;  but  there  are  some 
countries,  notably  the  Russian  Empire,  the  Austrian  domin- 
ions, Spain,  and  the  island  of  Malta,  in  which  they  more  or 
less  completely  bind  individual  persons  publicly  adhering 
to  the  Roman  communion.  Yet  even  here  it  is  allowed 
that  such  legal  effect  is  consequent  upon  positive  laws  of  the 
country,  may  be  varied  by  the  legislature  and  must  be  inter- 
preted by  the  judicature  of  the  State.  At  most  the  national 
government  is  bound  by  a  diplomatic  instrument,  a  con- 
cordat with  the  Holy  See,  which  may  be  denounced  and  can- 
celled. Nowhere  does  the  medieval  conception  of  the  legal 
control  of  marriage  by  the  hierarchy  survive.  The  Court  of 
Rome  accepts  this  state  of  things  in  fact,  if  not  in  theory, 
and  the  decree  Ne  temere  is  an  adjustment  of  canonical  prac- 
tice to  existing  facts.  It  is  addressed  to  all  adherents  of 
the  Roman  communion  as  such,  whatever  be  the  civil  laws 
under  which  they  live,  and  it  appeals  exclusively  to  their 


NEED   OF  AN   UNIFORM  SYSTEM  219 

consciences.  It  has  no  legal  effect,  unless  accidentally,  and 
it  is  not  held  back  on  that  account.  In  reality,  if  not 
avowedly,  the  Roman  Church  falls  back  upon  a  position  of 
purely  spiritual  discipline. 

This  may  pave  the  way  for  a  great  reform.  The  confusion 
now  existing  in  the  laws  of  diverse  States  regarding  marriage 
and  divorce  cannot  but  be  regarded  as  a  great  evil.1  Not 
only  do  States  entirely  independent  go  their  own  way,  but 
even  within  the  great  federal  communities  of  the  United 
States,  [of  Canada,  and  of  Australia,  the  component  parts 
have  laws  differing  in  various  degrees.  The  jurisprudence 
of  different  countries  follows  different  rules  in  applying  the 
principle  of  domicile  or  of  international  comity,  with  the 
consequence  that  a  marriage  held  valid  in  one  country  is 
elsewhere  annulled,  and  the  married  in  passing  from  one 
place  of  residence  to  another  may  find  themselves  for  all 
legal  purposes  disunited.  This  state  of  things  is  inevitable, 
so  long  as  States  jealously  assert  their  right  severally  and 
entirely  to  control  the  law  of  marriage  in  regard  to  their  sub- 
jects and  denizens.  But  marriage  is  not  a  matter  merely 
of  national  or  local  institution.  It  is  the  foundation  of 
human  society  ;  the  great  development  of  nationalities  dur- 
ing the  last  three  centuries  has  not  destroyed  the  real  unity 
of  mankind,  nor  entirely  obliterated  all  sense  of  it,  and  the 
extensive  movement  of  individuals  and  families  which 
characterizes  modern  life  makes  the  recognition  of  that  unity 
more  important.  International  commerce  compels  a  certain 
unification  of  method  in  all  civilized  communities  ;  inter- 
national intercourse  of  life  renders  a  similar  unification  of  the 
law  of  the  family  at  least  equally  desirable.  It  can  be  effected 


1  Their  diversity  and  complexity  may  be  studied  in  Renton  and 
Phillimore's  Comparative  Law  of  Marriage  and  Divorce,  my  deep 
indebtedness  to  which  I  will  here  once  for  all  acknowledge. 


220     OF  MARRIAGE  IN  THE  MODERN  STATE 

only  by  international  agreement.  Marriage  should  be  a 
subject  of  International  Law,  and  the  evil  wrought  by  the 
shattering  of  the  unity  of  Canon  Law  may  thus  be  remedied. 
A  very  small  beginning  has  been  made  by  The  Hague  Confer- 
ence in  determining  how  far  the  lex  loci  and  the  national  law 
of  the  parties  shall  respectively  apply  to  cases  of  divorce ; 
in  the  same  kind  of  procedure  lies  the  main  hope  of  a 
larger  unity. 

If  unity  is  to  be  achieved,  its  roots  must  be  sought  in  the 
Natural  Law.  English  lawyers  are  impatient  of  this,  and 
even  French  jurists,  wrapt  in  the  study  of  their  finished 
Code,  pay  it  comparatively  small  attention ;  but  inter- 
national jurists  are  compelled  to  build  upon  it  as  their  only 
foundation.  It  is  therefore  necessary  to  insist  on  the 
essential  character  of  marriage  as  founded  in  the  order  of 
nature.  Unity  can  be  attained  only  by  the  abandonment 
of  what  is  merely  artificial,  by  the  limitation  of  restrictions 
and  requirements  which  represent  a  peculiar  tradition,  by 
a  return  to  the  broad  principles  underlying  narrow  pro- 
vincialisms. 

This  does  not  mean  that  all  local  or  national  laws  will  be 
superseded.  Such  an  achievement,  even  if  it  be  desirable, 
is  beyond  the  widest  range  of  possibility.  It  does  mean 
that  there  shall  be  the  least  possible  interference,  whether 
by  addition  or  by  dispensation,  with  the  Law  of  Nature. 
It  means,  above  all,  the  reduction  of  diriment  impediments 
within  the  narrowest  bounds,  the  abandonment  of  rules 
requiring  for  the  validity  of  a  marriage  the  intervention  of 
an  official  or  the  fulfilment  of  onerous  precautions.  It  is 
idle  to  suppose  that  these  can  be  made  even  approximately 
identical  in  all  countries,  and  they  are  the  chief  cause  of  the 
existing  confusion.  Their  disappearance  need  not  hinder 
the  enforcement  of  stringent  laws  imposing  penalties  on 
those  who  contract  marriage  without  regarding  the  rules 


NEED  OF  AN  UNIFORM  SYSTEM  221 

of  publicity  established  by  law  ;   it  will  only  intercept  the 
wrong  that  is  not  unfrequently  done  where  a  contract 
made  in  good  faith,  and  fulfilled  in  person,  is  found  to  be 
legally  void  for  lack  of  some  formality.     The  abandonment 
of  false  positions  should  not  be  impossible  ;    the  detailed 
marriage  laws  of  most  modern  states  are  not  conspicuously 
wise.     If  jealousy  of  ecclesiastical  dictation  is  diminished, 
the  jealous  defence  of  national  rules  may  give  way.     Nor 
is  there  lacking  an  example  of  what  is  needed.     The  marriage 
law  of  Scotland,  in  its  august  and  austere  simplicity,  affords 
a  model.     But  for  the  Calvinistic  teaching  that  adultery 
or  malicious  desertion  ipso  facto  dissolves  the  bond,  it  in- 
volves little  or  no  disturbance  of  the  natural  order,  and 
adds  the  smallest  amount  of  matter  required  for  public 
discipline.     I  speak  of  Scottish  law  because  it  is  fairly  well 
known  to  Englishmen,  but  it  is  not  merely  Scottish  ;   it  is 
directly  derived  from  the  Roman-Dutch  law  as  taught  in 
the  school  of  Leyden.    That  school  has  bred  also  the  greatest 
of  international  jurists.     If  a  Conference  at  The  Hague  is 
to  give  the  civilized  world  the  benefit  of  an  unified  law  of 
marriage,  the  proximity  of  Leyden  may  be  the  best  of  omens. 
But  this  is  a  vision  of  many  days.     In  the  meantime 
there  are  local  reforms  to  be  effected,  and  here  we  must 
ask  what  is  the  duty  of  the  instructed  Christian.     He  is 
obviously  bound  to  direct  his  own  personal  conduct  by  the 
Christian  rule.     In  the  absence  of  any  public  forum  effec- 
tively controlling  marriage  by  penitential  discipline,  he  is  the 
more  bound  to  a  proper  regard  for  the  forum  conscientiae.  The 
laxity  of  the  English  law,  and  the  almost  unlimited  facilities 
which  it  affords  for  evasions  of  the  obligations  of  the  married 
state,  give  to  this  moral  discipline  a  paramount  importance. 
But  the  duty  of  a  Christian  is  not  fulfilled  with  the  regulation 
of  his  own  conduct.     He  is  a  member  of  two  public  com- 
munities, Church  and  State,  in  regard  to  both  of  which  he 


222     OF  MARRIAGE  IN  THE  MODERN  STATE 

has  public  obligations.    They  must  be  considered  separately, 
and  in  their  interaction. 

It  is  the  duty  of  a  Christian  to  support  the  authority  of 
the  Church.  It  may  be  his  duty  also  to  lend  his  aid  for  the 
reform  of  abuses  in  the  Church.  In  the  present  condition 
of  latent  or  open  antagonism  between  Church  and  State, 
it  is  his  duty  to  labour  for  a  just  settlement ;  in  England 
there  is  urgent  need  of  a  wise  and  courageous  defence  of 
the  right  of  the  Church  to  exercise  discipline  over  its  members 
in  cases  where  the  civil  law  of  marriage  conflicts  with  the 
sacred  canons.  That  right  is  challenged,  and  the  challenge 
has  the  support  of  weighty  precedents.  The  hierarchy 
must  assert  and  exercise  the  power  of  excluding  from 
communion  those  who  under  cover  of  law  resist  the  ordinance 
of  God  or  the  rule  of  the  Church.  "  This  principle/'  the 
Archbishop  of  York  has  lately  said,  "  is  inherent  in  any 
claim  of  the  Church  to  be  a  spiritual  society,  and  is  in  no 
way  inconsistent  with  the  true  understanding  of  its  consti- 
tutional relations  with  the  State."  1  But  the  hierarchy 
needs  the  constant  support  of  the  faithful.  The  power 
must  be  exercised  at  any  cost ;  the  cost  will  be  less,  the 
difficulty  will  be  reduced,  in  proportion  as  the  faithful 
generally  bring  their  neighbours  to  acknowledge  its  reason- 
ableness. "  There  seems  to  me,"  says  the  Bishop  of  Oxford, 
"to  be  no  principle  more  certain  than  the  principle  that 
this  judicial  power  belongs  to  the  Church  only,  and  that 
the  Church  cannot  surrender  its  authority  to  the  State 
without  fundamental  treason.  I  believe,  therefore,  that  it 
is  our  duty  to  abide  by  this  principle  and  to  face  the  conse- 
quences — without  violent  language  or  intemperate  action, 
but  solemnly  and  with  due  sense  of  the  gravity  of  the  issue. 
And  we  ought  to  pray  with  all  our  hearts  that  our  bishops, 
clergy,  and  laity  may  be  given  in  this  matter  the  virtue  of 
1  Pastoral  Letter  of  July,  1912. 


THE  DUTY  OF  A  CHRISTIAN  223 

courage  and  simplicity  and  the  wisdom  to  commend  the 
principle  of  our  action  to  the  common  religious  conscience 
of  the  nation."  * 

To  commend  a  principle  to  the  common  sense  of  mankind 
is  to  apply  it  wisely,  with  open  sincerity,  and  with  evident 
justice.  So  to  apply  this  principle  is  not  impossible  In 
asserting  the  rights  of  the  Church,  it  is  not  necessary  to 
decry  the  rights  of  the  State.  I  have  laboured  to  show 
that  the  State  has  inherent  rights  in  the  matter  of  marriage 
and  divorce.  It  would  be  well  if  the  laws  of  the  Church 
and  of  the  State  should  coincide,  but  it  is  not  necessary. 
The  rule  of  the  Church  will  be  most  wisely  defended  when 
the  rule  of  the  State  is  treated  with  respect.  When  the 
State  allows  things  plainly  repugnant  to  natural  morality, 
there  must  be  plain  speaking.  But  when  the  State  allows 
things  which  the  Church  forbids,  or  which  the  Church 
teaches  on  the  ground  of  revelation  to  be  contrary  to  the 
Divine  Law,  there  is  no  place  for  intemperate  or  contemptu- 
ous words.  Not  all  the  subjects  of  the  State  are  subjects  of 
the  Church,  and  the  State  legislates  for  all  its  subjects  alike. 
The  Church  may  forbid  its  own  members  to  use  a  liberty 
which  the  State  allows,  or  even  to  do  what  the  State  com- 
mands, but  it  is  not  reasonable  to  object  to  the  liberty  or 
the  command  merely  on  the  ground  of  its  disagreement 
with  a  rule  of  the  Church.  If  the  State  allows  a  marriage 
which  the  Church  disallows  on  the  score  of  kinship,  it  is 
perfectly  just  to  call  that  marriage  incestuous  in  the  course 
of  ecclesiastical  discipline,  to  warn  the  faithful  against  con- 
tracting it,  and  to  censure  those  who  disobey  ;  but  it  is 
not  just  to  treat  it  as  of  no  account  at  all,  and  to  speak  of 
the  married  as  living  in  mere  fornication.  "  There  is  a 
marked  distinction,"  says  the  Archbishop  of  Canterbury, 

1  Pastoral  Letter  of  July,  1912. 


224     OF  MARRIAGE  IN  THE  MODERN  STATE 

"  between  the  case  of  a  man  who  has  conscientiously  con- 
tracted a  marriage  ecclesiastically  irregular  but  expressly 
legalized  and  validated,  and  the  case  of  a  man  who  is  living 
with  a  woman  not  legally  his  wife,  is  producing  illegitimate 
children,  and  is  capable  during  his  partner's  lifetime  of 
forthwith  marrying  another  woman."  Account  should  be 
taken  of  legality ;  and,  doing  this  honestly,  the  Church 
will  stand  on  firmer  ground  in  asserting  that  something 
more  than  legality  must  be  considered  where  it  is  a  question 
of  spiritual  discipline.  "  The  contention  that  it  rests  with 
Parliament/'  says  the  Archbishop  again,  "  or  with  the  civil 
courts,  and  not  with  the  Church  itself,  which  has  authorities 
and  courts  for  the  purpose,  to  determine  the  conditions  of 
the  admission  of  our  members  to  Holy  Communion,  is 
untenable,  and  if  it  were  to  be  authoritatively  asserted, 
acquiescence  in  it  would  be  impossible."  * 

It  is  the  duty  of  a  Christian  to  support  the  authority 
of  the  State.  It  may  be  his  duty  also  to  labour  for  the 
reformation  of  the  laws  of  the  State.  In  doing  this  he  has 
no  right  to  put  aside  what  he  has  learnt  as  a  Christian,  and 
in  the  quality  of  citizenship  to  act  as  a  mere  natural  man. 
Such  a  division  of  personality  is  intolerable.  But  neither 
is  he  bound  to  insist  that  the  laws  of  the  State,  in  regard 
to  marriage  or  in  regard  to  anything  else,  shall  conform 
exactly  to  Christian  teaching.  Not  all  the  subjects  of  the 
State  are  Christian,  and  the  State  must  legislate  for  all. 
He  is  bound,  however,  to  use  his  Christian  illumination  for 
ascertaining  what  is  naturally  just,  and  he  is  no  less  bound 
to  ensue  peace  by  endeavouring  to  bring  the  law  into  such 
a  frame  that  it  will  not  actually  conflict  with  his  obligations 
to  the  Church. 


1  Letter  to  the  Bishop  of  London.     The  text  of  this  important 
document  is  given  below  in  Appendix  B. 


PARTICULAR  NEEDS  OF  ENGLAND    225 

The  present  state  of  the  English  law  of  marriage  affords 
ample  scope  for  such  endeavour.  Apart  from  the  misuse 
of  divorce  and  the  peril  of  interference  with  spiritual  dis- 
cipline, about  which  I  have  said  enough,  four  conspicuous 
defects  are  apparent.  There  is  evil  in  the  law  which  annuls 
a  marriage  contract  by  reason  of  the  neglect  of  arbitrarily 
imposed  formalities ;  this  law,  enacted  for  the  repression 
of  clandestinity,  recognizes  three  different  methods  of  con- 
tracting which  provide  the  most  inadequate  safeguards 
for  publicity  ;  the  requirement  of  the  intervention  of  an 
official  person,  who  appears  to  be  actually  joining  the  parties, 
engenders  a  false  opinion  about  the  nature  of  the  contract ; 
the  confusion  of  functions,  ecclesiastical  and  civil,  in  the 
solemnization  of  marriage  hinders  a  clear  recognition  of 
the  respective  rights  and  powers  of  Church  and  State. 

The  first  of  these  four  defects  of  the  law  requires  separate 
treatment ;  reform  means  the  abandonment  of  a  principle 
incorporated  into  legislation  within  the  last  hundred  and 
sixty  years,  and  the  assimilation  of  English  law  to  the  laws 
of  Scotland  and  Ireland.  The  other  three  faults  can  be 
remedied  by  a  single  reform.  The  State  should  insist  on 
adequate  publicity  of  marriage,  by  requiring  previous 
notification  of  an  effective  kind,  and  by  imposing  severe 
penalties  on  all  persons  concerned  in  a  contract  of  marriage 
made  without  such  notification  ;  simplicity  and  efficiency 
demand  the  commission  of  these  preliminaries,  and  of  sub- 
sequent registration,  uniformly  in  all  cases  alike  to  a  public 
official,  but  his  intervention  at  the  actual  making  of  the 
contract  is  neither  necessary,  convenient,  nor  desirable, 
all  that  is  needed  being  a  record  of  sufficient  witness  to  what 
is  done.  An  amendment  of  the  law  conceived  in  this 
fashion  would  provide  for  that  publicity  and  uniform  regis- 
tration which  it  is  the  proper  function  of  the  State  to  guard, 
would  leave  the  parties  free  to  contract  in  facie  ecclesiae  or 

M.C.S.  0 


226     OF  MARRIAGE  IN  THE  MODERN  STATE 

otherwise  according  to  their  judgment,  and  would  enable 
the  Church  to  solemnize  their  nuptials  with  such  rites,  such 
publicity,  and  such  record  as  the  sacred  canons  require. 
It  would  secure  perfect  religious  equality,  and  would  empha- 
size, instead  of  obscuring,  the  natural  relation  which  human 
law  can  but  observe  and  regulate.1 

The  graver  questions  of  divorce  remain.  The  necessity 
of  a  legal  system  of  divorce  cannot,  I  think,  be  denied. 
That  its  control  falls  properly  within  the  dispensing  power 
of  the  State  I  have  tried  to  prove.  Its  abuse  may  be  re- 
strained by  a  healthy  public  opinion,  to  the  formation  of 
which  every  Christian  is  plainly  bound  to  contribute  what 
lies  in  his  power ;  but  he  is  not  bound  to  insist  that  the 
State  shall  be  restricted  to  those  grounds  for  separation 
which  the  Church  considers  adequate.  It  is  hardly  possible 
to  hope  for  exact  agreement,  either  here  or  in  the  recognition 
of  impediments  to  marriage,  since  the  State  legislates  for 
all  men,  and  the  Church  for  Christians  alone.  The  candid 
acknowledgment  of  diversity  makes  for  that  mutual 
toleration  which  will  secure  for  the  Church  freedom  in  the 
exercise  of  spiritual  discipline. 

1  For  a  scheme  of  reform  in  detail,  see  Appendix  C. 


Appendix  A 


i.  THE  DECREE  NE  T  EM  ERE 

Ne  temere  inirentur  clandestina  conjugia,  quae  Dei  Ecclesia  justis- 
simis  de  causis  semper  detestata  est  atque  prohibuit,  provide  cavit 
Tridentinum  Concilium,  cap.  i,  Sess.  XXIV  de  reform,  matrim. 
edicens  :  "  Qui  aliter  quam  praesente  parocho  vel  alio  sacerdote 
de  ipsius  parochi  seu  Ordinarii  licentia  et  duobus  vel  tribus  teStibus 
matrimonium  contrahere  attentabunt,  eos  Sancta  Synodus  ad  sic 
contrahendum  omnino  inhabiles  reddit,  et  hujusmodi  contractus 
irritos  et  nullos  esse  decernit." 

Sed  cum  idem  Sacrum  Concilium  praecepisset,  ut  tale  decretum 
publicaretur  in  singulis  paroeciis,  nee  vim  haberet  nisi  iis  in  locis 
ubi  esset  promulgatum  ;  accidit  ut  plura  loca,  in  quibus  publicatio 
ilia  facta  non  fuit,  beneficio  tridentinae  legis  caruerint,  hodieque 
careant,  et  haesitationibus  atque  incommodis  veteris  disciplinae 
adhuc  obnoxia  maneant. 

Verum  nee  ubi  viguit  nova  lex,  sublata  est  omnis  difficultas. 
Saepe  namque  gravis  exstitit  dubitatio  in  decernenda  persona 
parochi,  quo  praesente  matrimonium  sit  contrahendum;  Statuit 
quidem  canonica  disciplina,  proprium  parochum  eum  intelligi  de- 
bere,  cujus  in  paroecia  domicilium  sit,  aut  quasi-domicilium  alter- 
utrius  contrahentis.  Verum  quia  nonnunquam  difficile  est  judicare, 
certone  constet  de  quasi-domicilio,  baud  pauca  matrimonia  fuerunt 
objecta  periculo  ne  nulla  essent :  multa  quoque,  sive  inscitia  homi- 
num  sive  fraude,  illegitima  prorsus  atque  irrita  deprehensa  sunt. 

Haec  dudum  deplorata,  eo  crebrius  accidere  nostra  aetate  videmus, 
quo  facilius  ac  celerius  commeatus  cum  gentibus,  etiam  disjunctis- 
simis,  peificiuntur.  Quamobrem  sapientibus  viris  ac  doctissimis 
visum  est  expedire  ut  mutatio  aliqua  induceretur  in  jure  circa  for- 
mam  celebrandi  connubii.  Complures  etiam  sacrorum  Antistites 
omni  ex  parte  terrarum,  praesertim  e  celebrioribus  civitatibus,  ubi 
gravior  appareret  necessitas,  supplices  ad  id  preces  Apostolicae  Sedi 
admoverunt. 

Flagitatum  simul  est  ab  Episcopis,  turn  Europae  plerisque,  turn 
aliarum  regionum,  ut  incommodis  occurreretur,  quae  ex  sponsalibus, 
idest  mutuis  promissionibus  futuri  matrimom'i  privatim  initis, 


228  APPENDIX  A 

derivantur.  Docuit  enim  experientia  satis,  quae  secum  pericula 
ferant  ejusmodi  sponsalia :  primum  quidem  incitamenta  peccandi 
causamque  cur  inexpertae  puellae  decipiantur  ;  postea  dissidia  ac 
lites  inextricablies. 

His  rerum  adjunctis  permotus  SSmus  D.N.  Pius  PP.X,  pro  ea 
quam  gerit  omnium  Ecclesiarum  sollicitudine,  cupiens  ad  memorata 
damna  et  pericula  removenda  temperatione  aliqua  uti,  commisit  S. 
Congregation!  Concilii  ut  de  hac  re  videret,  et  quae  opportuna 
aestimaret,  S.  Sedi  proponeret. 

Voluit  etiam  votum  audire  Consilii  ad  jus  canonicum  in  unum 
redigendum  constituti,  nee  non  Emoram  Cardinalium  qui  pro 
eodem  codice  parando  speciali  commissione  delecti  sunt :  a  quibus, 
quemadmodum  et  a  S.  Congregatione  Concilii,  conventus  in  eum 
finem  saepius  habiti  sunt.  Omnium  autem  sententiis  obtentis, 
ggmufl  Dominus  S.  Congregation!  Concilii  mandavit,  ut  decretum 
ederet  quo  leges,  a  Se  ex  certa  scientia  et  matura  deliberatione 
probatae,  continerentur,  quibus  sponsalium  et  matrimonii  disciplina 
in  posterum  regeretur,  eorumque  celebratio  expedita,  certa  atque 
ordinata  fieret. 

In  executionem  itaque  Apostolici  mandati,  S.  Concilii  Congregatio 
praesentibus  litteris  constituit  atque  decernit  ea  quae  sequuntur. 

DE  SPONSALIBUS 

I.  Ea  tantum  sponsalia  habentur  valida  et  canonicos  sortiuntur 
effectus,    quae    contracta   fuerint   per   scripturam   subsignatam   a 
partibus  et  vel  a  parocho,  aut  a  loci  Ordinario,  vel  saltern  a  due  bus 
testibus. 

Quod  si  utraque  vel  alterutra  pars  scribere  nesciat,  id  in  ipsa 
scriptura  adnotetur  ;  et  alius  testis  addatur,  qui  cum  parocho,  aut 
loci  Ordinario,  vel  duobus  testibus,  de  quibus  supra,  scripturam 
subsignet. 

II.  Nomine  parochi  hie  et  in  sequentibus   articulis  venit  non 
solum  qui    legitime  praeest  paroeciae  canonice  erectae ;    sed    in 
regionibus,  ubi  paroeciae  canonice  erectae  non  sunt,  etiam  sacerdos 
cui  in  aliquo  definito  territorio  cura  animarum  legitime  commissa 
est,  et  parocho  aequiparatur  ;  et  in  missionibus,  ubi  territoria  necdum 
perfecte   divisa  sunt,   omnis   sacerdos   a  missionis   Moderatore   ad 
animarum  curam  in  aliqua  statione  universaliter  deputatus. 

DE  MATRIMONIO 

III.  Ea    tantum    matrimonia    valida    sunt,    quae    contrahuntur 
coram  parocho  vel  loci  Ordinario  vel  sacerdote  ab  alterutro  delegate, 
et  duobus  saltern  testibus,  juxta  tamen  regulas  in  sequentibus  arti' 


APPENDIX  A  229 

culis  expressas,  et  sal  vis  exceptionibus  quae  infra  n.  VII  et  VIII 
ponuntur. 

IV.  Parochus   et   loci   Ordinarius    valide   matrimonio   adsistunt, 
§  i°  a  die  tantummodo  adeptae  possessionis  beneficii  vel  initi 

omcii,  nisi  publico  decreto  nominatim  fuerint  excommunicati  vel 
ab  officio  suspensi ; 

§  2°  intra  limites  dumtaxat  sui  territorii :  in  quo  matrimoniis 
nedum  suorum  subditorum,  sed  etiam  non  subditorum  valide  adsis- 
tunt; 

§  3°  dummodo  invitati  ac  rogati,  et  neque  vi  neque  metu  gravi 
constricti  requirant  excipiantque  contrahentium  consensum. 

V.  Licite  autem  adsistunt, 

§  i°  constito  sibi  legitime  de  libero  statu  contrahentium,  servatis 
de  jure  servandis  ; 

§  2°  constito  insuper  de  domicilio,  vel  saltern  de  menstrua  com- 
moratione  alterutrius  contrahentis  in  loco  matrimonii ; 

§  3°  quod  si  deficiat,  ut  parochus  et  loci  Ordinarius  licite  matri- 
monio adsint,  indigent  licentia  parochi  vel  Ordinarii  proprii  alter- 
utrius contrahentis,  nisi  gravis  intercedat  necessitas,  quae  ab  ea 
excuset. 

§  4°  Quoad  vagos,  extra  casum  necessitatis,  parocho  ne  liceat  eorum 
matrimoniis  adsistere,  nisi,  re  ad  Ordinarium  vel  ad  sacerdotem  ab 
eo  delegatum  delata,  licentiam  adsistendi  impetraverit. 

§  5°  In  quolibet  autem  casu  pro  regula  habeatur  ut  matrimonium 
coram  sponsae  parocho  celebretur,  nisi  aliqua  justa  causa  excuset. 

VI.  Parochus  et  loci  Ordinarius  licentiam  concedere  possunt  alii 
sacerdoti  determinato  ac  certo,   ut  matrimoniis  intra  limites  sui 
territorii  adsistat. 

Delegatus  autem,  ut  valide  et  licite  adsistat,  servare  tenetur 
limites  mandati,  et  regulas  pro  parocho  et  loci  Ordinario  n.  IV  et  V 
superius  statutas. 

VII.  Imminente  mortis  periculo,  ubi  parochus,  vel  loci  Ordinarius, 
vel  sacerdos  ab  alterutro  delegatus,  haberi  nequeat,  ad  consulendum 
conscientiae  et  (si  casus  ferat)   legitimationi  prolis,  matrimonium 
contrahi  valide  ac  licite  potest  coram  quolibet  sacerdote  et  duobus 
testibus. 

VIII.  Si  contingat  ut  in  aliqua  regione  parochus  locive  Ordinarius, 
aut  sacerdos  ab  eis  delegatus,  coram  quo  matrimonium  celebrari 
queat,  haberi  non  possit,  eaque  rerum  conditio  a  mense  jam  perse- 
veret,  matrimonium  valide  ac  licite  iniri  potest  emisso  a  sponsis 
foimali  consensu  coram  duobus  testibus. 

IX.  §   i°.  Celebrate  matrimonio,   parochus,   vel  qui  ejus   vices 
gerit,  statim  describat  in  libro  matrimoniorum  nomina  conjugum 
ac  testium,  locum  et  diem  celebrati  matrimonii,  atque  alia,  juxta 


230  APPENDIX  A 

modum  in  libris  ritualibus  vel  a  proprio  Ordinario  praescriptum ; 
idque  licet  alius  sacerdos  vel  a  se  vel  ab  Ordinario  delegatus  matri- 
monio  adstiterit. 

§  2°.  Praeterea  parochus  in  libro  quoque  baptizatorum  adnotet, 
conjugem  tali  die  in  sua  parochia  matrimonium  contraxisse.  Quod 
si  conjux  alibi  baptizatus  fuerit,  matrimonii  parochus  notitiam  initi 
contractus  ad  parochum  baptismi  sive  per  se,  sive  per  curiam  epis- 
copalem  transmittat,  ut  matrimonium  in  baptismi  librum  referatur. 

§  3°.  Quoties  matrimonium  ad  normam  n.  VII  aut  VIII  contra- 
hitur,  sacerdos  in  priori  casu,  testes  in  altero,  tenentur  in  solidum 
cum  contrahentibus  curare,  ut  initum  conjugium  in  praescriptis 
libris  quam  primum  adnotetur. 

X.  Parochi  qui  heic  hactenus  praescripta  violaverint,  ab  Ordin- 
ariis  pro  modo  et  gravitate  culpae  puniantur.     Et  insuper  si  alicujus 
matrimonio  adstiterint    contra    praescriptum    §  2   et    3    num.   V, 
emolumenta  stolae  sua  ne  faciant,  sed  proprio  contrahentium  parocho 
remittant. 

XI.  §  i°.  Statutis  superius  legibus  tenentur  omnes  in  catholica 
Ecclesia  baptizati  et  ad  earn  ex  haeresi  aut  schismate  conversi 
(licet  sive  hi,  sive  illi  ab  eadem  postea  defecerint),  quoties  inter  se 
sponsalia  vel  matrimonium  ineant. 

§  2°.  Vigent  quoque  pro  iisdem  de  quibus  supra  catholicis,  si  cum 
acatholicis  sive  baptizatis  sive  non  baptizatis,  etiam  post  ob  ten  tarn 
dispensationem  ab  impedimento  mixtae  religionis  vel  disparitatis 
cultus,  sponsalia  vel  matrimonium  contrahunt :  nisi  pro  aliquo 
particular!  loco  aut  regione  aliter  a  S.  Sede  sit  statutum. 

§  3°.  Acatholici  sive  baptizati  sive  non  baptizati,  si  inter  se  contra- 
hunt, nullibi  ligantur  ad  catholicam  sponsalium  vel  matrimonii 
formam  servandam. 

Praesens  decretum  legitime  publicatum  et  promulgatum  habeatur 
per  ejus  transmissionem  ad  locorum  Ordinarios  :  et  quae  in  eo  dis- 
posita  sunt  ubique  vim  legis  habere  incipiant  a  die  solemni  Paschae 
Resurrectionis  D.N.J.C.  proximi  anni  1908. 

Interim  vero  omnes  locorum  Ordinarii  curent  hoc  decretum 
quamprimum  in  vulgus  edi,  et  in  singulis  suarum  dioecesum  paro- 
chialibus  ecclesiis  explicari,  ut  ab  omnibus  rite  cognoscatur. 

Praesentibus  valituris  de  mandato  speciali  SSml  D.N.  Pii  PP.X., 
contrariis  quibuslibet  etiam  peculiar!  mentione  dignis  minime 
obstantibus. 

Datum  Roma*  die  2*  mensis  Augusti  anni  1907. 

VINCENTIUS  Card.  Ep.  Praenest.,  Praefectus. 
C.  DE  LAI,  Secretarius. 


APPENDIX  A  231 

2.  SUBSEQUENT  DECREES. 

The  decree  Ne  temere  has  subsequently  been  elucidated  by  various 
decrees  of  the  Sacred  Congregation  of  the  Council,  of  which  I  select 
the  following : — 
i  Feb.,  1908. 

An  decreto  Ne  temere  adstringantur  etiam  catholic!  ritus  orien- 
talis  ? 

Resp.  Negative. 

Num  in  imperio  Germaniae  catholici,  qui  ad  sectam  haereticam 
vel  schismaticam  transierunt,  vel  conversi  ad  fidem  catholicam  ab 
ea  postea  defecerunt,  etiam  in  juvenili  vel  infantili  aetate,  ad  valide 
cum  persona  catholica  contrahendum  adhibere  debeant  form  am 
in  decreto  Ne  temere  statutam,  ita  scilicet  ut  contrahere  debeant 
coram  parocho  et  duobus  saltern  testibus  ? 

Resp.  Affirmative. 
28  Martii,  1908. 

Utrum  validum  sit  matrimonium  contractum  a  catholica  ritus 
atini   cum  catholico  ritus  orientalis,  non  servata  forma  a  decreto 
Ne  temere  statuta  ? 
Resp.  Negative. 

An  in  art.  XI  §  2  ejusdem  decretisub  nomine  acatholicorum  com- 
prehendantur  etiam  schisma.tici  et  haeretici  rituum  Orientalium  ? 

Resp.  Affirmative. 
27  Julii  1908. 

Ar  vi  decreti  Ne  temere,  etiam  ad  matrimonia  mixta  valide  contra- 
henda,  ab  Ordinario  vel  a  parocho  exquirendus  et  excipiendus  sit 
contrahentium  consensus  ? 

Resp.  Affirmative,  servatis  ad  liceitatem,  quod  ad  reliqua,  prae- 
scriptionibus  et  instructionibus  S.  Sedis. 

An  et  quomodo  providere  expediat  casui  quo  parochi  a  lege  civili 
graviter  prohibeantur  quominus  matrimoniis  fidelium  assistant  nisi 
praemissa  caerimonia  civili,  quae  praemitti  nequeat,  et   tamen  pro 
animarum  salute  omnino  urgeat  matrimonii  celebratio  ? 
Resp.  Non  esse  interloquendum. 


Appendix  B 


LETTER    OF    THE    ARCHBISHOP    OF    CANTERBURY. 

LAMBETH  PALACE,  June  25,  1912. 

MY  DEAR  BISHOP  OF  LONDON, — It  is  not  surprising  that  people 
should  be  disquieted  by  things  which  have  been  said  in  the  recent 
lawsuit  respecting  the  interpretation  of  an  Act  of  Parliament  relied 
on  by  Canon  Thompson  as  justifying  his  refusal  of  Holy  Communion 
to  Mr.  and  Mrs.  Banister.  The  legal  points  involved  are  intricate 
and  technical,  and  you  may  perhaps  remember  that  I  endeavoured 
more  than  two  years  ago,  in  a  published  letter  to  Dr.  Inge,  now  Dean 
of  St.  Paul's,  to  point  out  their  very  limited  bearing  upon  the  large 
and  vitally  important  question  of  the  Church's  rights  and  juris- 
diction in  her  own  Courts  and  over  her  own  members.  I  showed 
that  the  only  point  which  had  been  really  before  the  Court  of  King's 
Bench  and  the  Court  of  Appeal  was  whether  or  not  the  Dean  of 
Arches  had  rightly  interpreted  a  particular  clause  in  an  Act  of  Parlia- 
ment. Recent  utterances  and  dicta  by  the  highest  judicial  author- 
ities, and  still  more  the  current  popular  interpretation  of  these 
utterances,  increase  the  importance  of  the  distinction  to  which  I 
drew  attention  between  the  responsibility  of  the  Court  of  King's 
Bench  and  the  higher  tribunals  for  interpreting  an  Act  of  Parliament 
and  the  responsibility  of  our  Ecclesiastical  Courts  for  interpreting  and 
applying  our  own  Rubrics 

The  contention  that  it  rests  with  Parliament  or  with  the  Civil 
Courts  and  not  with  the  Church  itself,  which  has  authorities  and 
Courts  for  the  purpose,  to  determine  the  conditions  of  the  admission 
of  our  members  to  Holy  Communion  is  untenable,  and  if  it  were  to 
be  authoritatively  asserted  acquiescence  in  it  would  be  impossible. 
It  has  not,  so  far  as  I  can  see,  been  authoritatively  asserted,  though 
I  own  that  some  of  the  judicial  language  used  in  the  Civil  Courts 
seems  to  go  perilously  near  to  such  a  contention.  The  much  more 
rough-and-ready  conclusions  drawn  in  certain  newspapers  and 
elsewhere  may  be  ascribed,  I  think,  to  a  popular  misunderstanding 
of  the  technical  points  involved,  and  of  the  true  position  of  our 
ecclesiastical  law. 


APPENDIX  B  233 

I  will  not  attempt  to  re-argue  what  I  said  on  that  subject  in  1910. 
Those  who  are  interested  in  these  grave  but  technical  considerations 
will  find  in  my  letter  (see  The  Times  of  February  8,  1910,  and  Guar- 
dian of  February  n,  1910,  page  215,  and  elsewhere)  as  careful  a 
statement  of  the  facts  as  I  could  give  in  short  compass.1  What  I 
there  said  has  never,  so  far  as  I  know,  been  controverted. 

As  regards  the  practical  question  which  underlies  these  technical 
points — the  question,  namely,  whether  a  man  who  under  the  existing 
law  marries  his  deceased  wife's  sister  ought  or  ought  not  to  be  ad- 
mitted to  Holy  Communion — no  universal  or  sweeping  decision 
has  been,  or,  I  think,  can  rightly  be,  laid  down. 

A  few  weeks  after  the  passing  of  the  Act  I  wrote,  as  you  may 
remember,  to  my  own  diocese  a  long  letter  (published  by  Macmillans 
in  pamphlet  form)  in  which  I  tried  to  deal  with  the  whole  question 
which  had  arisen.  In  it  I  pointed  out  (pages  49-50)  that,  greatly  as  I 
deplored  the  Act,  it  is  in  my  judgment  impossible  to  regard  a  man 
as  becoming  ipso  facto  "  an  open  and  notorious  evil-liver  "  on  account 
solely  of  contracting  that  particular  marriage  after  it  had  as  a  civil 
contract  been  expressly  sanctioned  by  English  law.  If,  as  is 
perfectly  possible,  he  is  to  be  rightly  repelled  from  Communion 
either  for  a  time  or  permanently,  such  repulsion  would  have  to 
be  on  other  grounds  than,  the  application  of  the  words  which  I 
have  quoted. 

I  wrote  on  my  own  sole  responsibility,  and  indeed  I  felt  myself 
precluded  from  consulting  ecclesiastical  Judges,  before  whom 
the  question  might  officially  come.  But  it  was  a  satisfaction  to 

1  The  most  important  passage  in  the  Archbishop's  letter  of  Feb.  4th,  1910, 
is  the  following : — 

"The  Dean  of  the  Arches  seems  to  me  to  have  said  no' word  which  could  imply 
that  the  Church  has  lost  the  right — a  right  which  we  must  regard  as  essential — 
to  determine  the  conditions  of  admission  to  Holy  Communion.  He  pointed  out, 
for  example,  that  he  had  not  before  him  the  question  whether  the  parties 
could  be,  or  ought  to  be,  excommunicated  by  a  sentence  of  the  Bishop's  Court 
under  the  jurisdiction  which  used  in  former  days  to  be  freely  exercised 
and  which  is,  I  believe,  still  recognized  by  express  statutory  enactment.  The 
question  before  him  was  restricted  to  the  validity  or  invalidity  of  the  incumbent's 
act  of  repulsion  carried  out  on  his  individual  responsibility.  I  pass  over  the 
Bishop's  private  communications,  for  these  obviously  could  not  be  officially 
recognized. 

"This  question  had  to  be  answered  by  a  consideration  of  what  is  the  extent  of  an 
incumbent's  personal  power  in  the  matter.  With  this  the  judgment  of  the  Court 
of  Arches  dealt.  The  Dean  of  the  Arches  ruled  that  to  contract  a  legally  valid 
marriage  with  a  deceased  wife's  sister  does  not,  of  itself,  bring  the  parties  into  th« 
category  of  '  open  and  notorious  evil-livers  '  within  the  meaning  of  the  rubric  ; 
and,  further,  that  a  particular  proviso  in  the  recent  Act  of  Parliament  does  not, 
when  properly  construed,  bear  the  construction  for  which  the  incumbent  con- 
tended. This,  and  this  only,  is  the  finding  of  the  Church  Court." 


234  APPENDIX  B 

me  a  few  months  later  to  find  my  view  on  that  particular  point 
supported  by  the  Dean  of  Arches  in  his  formal  judgment. 

Again,  when  the  Lambeth  Conference  of  Bishops  from  all  parts 
of  the  world  considered  in  1908  the  marriage  problems  submitted 
to  it,  the  great  committee  of  thirty-four  Bishops  agreed  to  a  report 
in  which  they  say  (page  143)  : — 

"  We  are  of  opinion  that  marriage  with  a  deceased  wife's  sister, 
where  permitted  by  the  law  of  the  land,  and  at  the  same  time  pro- 
hibited by  the  Canons  of  the  Church,  is  to  be  regarded  not  as  a  non- 
marital  union,  but  as  marriage  ecclesiastically  irregular  while  not 
constituting  the  parties  '  open  and  notorious  evil -livers.'  " 

So  far,  then,  as  the  ecclesiastical  opinion  of  our  Church  has  found 
formal  expression,  it  would  seem  to  accord  with  what  has  inciden- 
tally been  said  on  this  particular  point  by  the  Judges  of  our  highest 
civil  Courts,  although,  as  I  have  pointed  out,  the  interpretation  or 
application  of  the  Rubric  (apart  from  the  Act  of  Parliament)  was 
not  technically  before  them. 

It  is  popularly  contended  by  some  of  those  who  have  not,  I  think, 
given  adequate  attention  to  the  Dean  of  Arches'  judgment,  that  as  a 
matter  of  fact  the  Act  of  Parliament  does  effectively  change  the 
Church's  law,  because  a  man  who  would  before  the  passage  of 
the  Act  have  been  rightly  repelled  from  Communion  as  "an  open 
and  notorious  evil-liver,"  is  no  longer,  after  the  Act,  in  a  position 
to  which  these  words  are  applicable.  Upon  that  contention  I 
would  say  two  things — first,  that  as  a  matter  of  fact  the  stoutest 
opponents  of  the  Act — of  whom  I  claim  to  be  one — must  admit 
that  there  is  a  marked  distinction  between  the  case  of  a  man  who  has 
conscientiously  contracted  a  marriage  ecclesiastically  irregular  but 
expressly  legalized  and  validated,  and  the  case  of  a  man  who  is  living 
with  a  woman  not  legally  his  wife,  is  producing  illegitimate  children, 
and  is  capable  during  his  partner's  lifetime  of  forthwith  marrying 
another  woman.  The  words  "  open  and  notorious  evil-liver " 
may  surely  be  applicable  in  the  second  case  and  inapplicable  in  the 
first,  however  strongly  we  may  disapprove  the  course  which  the  man 
has  taken.  In  the  next  place,  it  has  nowhere,  so  far  as  I  can  see, 
been  authoritatively  declared  that  the  passage  of  the  Act  has  made 
discipline  impossible  in  the  case  of  an  ecclesiastically  irregular 
marriage.  The  Ecclesiastical  Court  has  said  that  the  particular 
marriage  in  question  does  not  per  se  make  those  who  contract  it 
"  open  and  notorious  evil-livers,"  and  further,  the  Ecclesiastical 
Court  has  been  supported  by  the  Civil  Courts  in  saying  that  the 
Parliamentary  subsection  on  which  Canon  Thompson  relied  has  not 
the  effect  which  he  supposed  it  to  have.  That  is  all.  Quite  ob- 
viously the  position  in  which  matters  stand  is  anxious  and  difficult. 


APPENDIX  B  235 

We  have  anticipated  it  ever  since  these  controversies  began.     That 
the  difficulties  are  insuperable  I  do  not  believe. 

It  seems  to  me  that  the  most  important  thing  to  bear  in  mind 
at  this  moment,  in  view  of  current  and  not  unnatural  anxiety, 
is  that  nothing  has  really  been  done  which  impairs  the  Church's 
right  through  her  own  authorities  and  tribunals  to  interpret  her  own 
rubrics  and  to  regulate  her  own  terms  of  Communion.  Our  Repre- 
sentative Church  Council  in  1910  recorded  its  "  emphatic  opinion  that 
any  assumption  that  the  State  can  by  Parliamentary  legislation 
practically  dictate  the  terms  of  admission  to  Holy  Communion  is  a 
position  which  cannot  be  accepted  by  the  Church."  When  putting 
to  the  vote  that  resolution,  which  was  carried  by  Bishops,  clergy, 
and  laity  nemine  contmdicente,  I  ventured  to  describe  it  as  a  self- 
evident  proposition  which  hardly  required  the  vote  of  the  Council. 
It  is  difficult  to  exaggerate  the  importance  of  maintaining  these 
principles  at  a  time  when  it  is  regarded  by  some  people  as  not 
improbable  that  an  attempt  may  be  made  in  Parliament  to  alter  our 
marriage  laws  in  a  more  drastic  and  far-reaching  way  than  was 
effected  by  what  we  regard  as  the  unhappy  Act  of  1907. 

I  am,  yours  very  truly, 

RANDALL  CANTUAR. 


Appendix  C 

A  PROPOSED  MODE  OF  CONTRACTING  MARRIAGE. 

With  the  author's  permission  I  have  extracted  from  the  Rev. 
J.  Fovargue  Bradley 's  Religious  Liberty  in  England  the  following 
proposal  for  reform  in  the  manner  of  contracting  marriage.  The 
outlines  of  the  scheme  were  furnished  by  a  Committee  on  which  I 
served,  but  Mr.  Bradley  worked  them  out  with  so  much  thorough- 
ness that  I  am  glad  to  avail  myself  of  his  labours. 

The  scheme  forms  part  of  a  draft  Bill,  "  To  terminate  the  Estab- 
lishment of  the  Church  of  England,  to  make  provision  in  respect 
of  the  Temporalities  thereof  ;  to  secure  religious  liberty  in  England 
and  Wales  and  for  other  purposes."  Mr.  Bradley  saw  that  such  a 
sweeping  measure  would  make  a  revision  of  the  Marriage  Law 
necessary,  but  the  scheme  is  detachable  from  the  rest  of  his  proposals. 
I  have  made  some  criticisms  in  the  margin. 

PART  II.     MARRIAGE 

Notice  of  Intended  Marriage  without  licence. — 6.  On  and  after  the 
date  of  disestablishment  the  following  order,  form,  and  procedure 
shall  be  the  order,  form,  and  procedure  for  contracting  marriage, 
with  or  by  licence,  any  Act  or  Acts,  or  any  ecclesiastical  custom, 
practice,  or  privilege,  to  the  contrary  notwithstanding — 

(i)  Any  person  intending  to  contract  marriage,  without  licence,  shall 
apply  in  person  or  through  the  post  to  the  Superintendent  Registrar 
of  the  district  in  which  such  person  resides  and  has  been  residing 
for  not  less  than  seven  clear  days  before  the  application,  and  the 
Superintendent  Registrar  shall  forthwith  deliver  to  the  applicant, 
or  within  forty-eight  hours  send  through  the  post  to  both  contracting 
parties  if  residing  within  his  district  a  form  of  notice  of  Intended 
Marriage  as  prescribed  in  the  First  Schedule  to  this  Act.1 

(2)  The  form  of  Notice  of  Intended  Marriage  shall  be  filled  up  and 
signed  by  the  contracting  party  and  shall  be  returned  by  person, 

1  I  have  not  thought  it  necessary  to  reproduce  the  Schedules. 


APPENDIX  C  237 

or  free  through  the  post  to  the  Superintendent  Registrar  of  the 
district  in  which  the  contracting  party  resides. 

(3)  The  Superintendent  Registrar  shall,  on  the  Friday  of  each  week, 
make  a  complete  list  of  all  Notices  of  Intended  Marriages  without 
licence  within  his  district,  received  by  him  from  Thursday  to  Thurs- 
day, which  are  in  accordance  with  the  provisions  of  this  section,  and 
shall  publish,  or  cause  to  be  published,  on  Friday  or  Saturday  of  each 
week  the  names  of  the  contracting  parties,  in  the  form  prescribed 
in  the  Third  Schedule  to  this  Act,  by  being  posted  up  in  his  office 
and  on  the  notice  board  or  some  other  convenient  and  visible  position 
in  connection  with  the  places  for  public  worship  in  the  parish  or 
ward  in  which  the  contracting  party  or  parties  reside,  and  otherwise 
as  the  Registrar-General  may  direct. 

Persons  before  whom  marriage  can  be  contracted,  and  procedure  of 
marriage. — 7.  (i)  When  a  Notice  of  Intended  Marriage  has  been  pub- 
lished in  the  manner  aforesaid,  for  not  less  than  fourteen  clear  days, 
and  no  lawful  impediment  has  been  reported  to  or  received  by  the 
Superintendent  Registrar,  at  his  office,  he  shall  send  through  the 
post  or  by  person  to  both  contracting  parties,  or  to  the  one 
contracting  party  residing  within  his  district,  a  form  of  Certificate 
of  Marriage  prescribed  in  the  Fourth  Schedule  to  this  Act. 

(2)  When  the  contracting  parties  have  certified  themselves  husband 
and  wife  in  the  presence  of  a  Principal  Witness  who  shall  for  the 
purposes  of  this  Act  be  a  Minister  of  Religion,  a  Justice  of  the  Peace, 
a  Notary  Public,  or  a  Commissioner  of  Oaths,  or  the  Superinten- 
dent Registrar  of  the  district  who  shall  not  refuse  to  act,  and  in 
the  presence  of  at  least  two  other  witnesses,  both  forms  of  Certificate 
of  Marriage  shall  thereupon  be  signed  by  both  contracting  parties, 
by  the  Principal  Witness,  and,  at  least,  two  other  witnesses  and  one 
witness   at  least  shall  certify  in  the  manner  and  form  prescribed 
in  the  Fourth  Schedule  to  this  Act  that  the  contracting  party  or 
parties  are  personally  known  to  such  witness. 

(3)  When  both  Certificates  of  Marriage  have  been  signed  by  both 
contracting   parties   and   the   witnesses   aforesaid   in   the   manner 
prescribed  the  Principal    Witness    shall    within    forty-eight    hours 
return  free  through  the  post,   or  by  person,   both  Certificates  of 
Marriage,  endorsed  as  prescribed  in  the  Fourth  Schedule  to  this  Act, 
to  the  Superintendent  Registrar  of  the  district  in  which  the  marriage 
has  been  contracted. 

(4)  Immediately  upon  receipt  from  the  Principal  Witness  of  both 
Certificates  of  Marriage  the  Superintendent  Registrar  shall  cause  the 
particulars  of  such  marriage  to  be  entered  in  his  Register  of  Marri- 
ages and  thereafter  shall  cause  one  of  the  Certificates  of  Marriage 
to  be  filed  and  duly  preserved  in  his  office,  or  such  other  place  as 


238  APPENDIX  C 

the  Registrar-General  shall  direct,  and  shall  send  by  post  the 
other  Certificate  of  Marriage  to  the  male  contracting  party  which 
shall  be  the  property  of  the  contracting  parties.1 

(5)  The  Superintendent  Registrar  shall  on  the  Friday  or  Saturday 
of  each  week  publish  or  cause  to  be  published  in  his  office  and  other- 
wise as  the  Registrar- General  shall  direct  in  the  form  prescribed  in 
the  Fifth  Schedule  to  this  Act  a  complete  list  of  all  marriages  without 
or  by  licence  which  have  been  contracted  within  his  district  during 
the  week. 

Fees. — 8.  (i)  The  contracting  parties,  or  one  of  them,  shall  remit  to 
the  Superintendent  Registrar  with  the  Notice  of  Intended  Marriage 
the  sum  of  two  shillings  and  sixpence  as  his  registration  fee,  provided 
both  contracting  parties  reside  within  his  district,  and  in  case 
one  of  the  contracting  parties  only  resides  within  his  district  such 
contracting  party  shall  remit  the  sum  of  one  shilling  and  sixpence 
with  the  Notice  of  Intended  Marriage. 

(2)  The  contracting  parties,  or  one  of  them,  shall  pay  to  the  Super- 
intendent Registrar  as  his  fee  as  Principal  Witness  two  shillings  and 
sixpence  and  to  any  other  Principal  Witness  not  less  than  two 
shillings  and  sixpence. 

Marriage  by  licence. — 9.  (i)  In  the  event  of  the  contracting  parties 
desiring  to  contract  marriage  by  licence  application  shall  be  made 
for  a  form  of  Notice  of  Intended  Marriage  as  provided  by  section 
six  of  this  Act  and  the  Superintendent  Registrar  of  the  district  in 
which  the  marriage  is  to  be  contracted  shall  immediately  upon 
receipt  of  such  Notice  of  Intended  Marriage  publish  or  cause  to  be 
published  a  notice  of  such  marriage  both  in  his  office  and  on  the 
notice  board  of  any  other  public  buildings  as  the  Registrar-General 
shall  direct,  and  also  in  two  local  daily  papers  issued  either  in  the 
morning  or  evening,  and  if  there  be  not  two  such  local  papers  in  any 
one  local  paper,  and  if  there  be  no  local  paper  in  two  London  daily 
papers  circulating  within  the  district  in  which  such  marriage  is  to 
be  contracted. 

(2)  The  Superintendent  Registrar  shall  the  day  following  the  issue  of 
such  notice  in  a  local  or  other  daily  paper,  provided  that  no  lawful 
impediment  to  the  intended  contract  of  marriage  is  reported  to  or 
received  by  him  at  his  office,  send  by  post  or  by  person  to  both  con- 
tracting parties  the  form  of  Certificate  of  Marriage  prescribed  in  the 
Fourth  Schedule  to  this  Act  and  it  shall  be  lawful  for  any  Principal 
Witness  named  in  section  seven  (2)  to  forthwith  complete  the  con- 
tract of  marriage.2 

1  It  would  seem  better  that  a  copy  of   the   certificate  should  be  sent   to 
each  of  the  parties. 

2  The  wording   is    faulty  here.     The    parties    themselves    "complete   the 
contract  of  marriage." 


APPENDIX  C  239 

(3)  The  provisions  of  this  Act  named  in  section  seven  for  the  com- 
pletion of  a  contract  without  licence  shall  apply  to  the  completion  of 
a  contract  by  licence. 

(4)  For  marriage  by  licence  no  resident  qualification  shall  be  re- 
quired, but  where  neither  of  the  contracting  parties  have  their  usual 
place  of  abode  in  the  district  where  the  intended  marriage  is  to  be 
contracted  both  contracting  parties  shall  make  an  affidavit  before  the 
Superintendent  Registrar  declaring  their  fixed  abode  and  that  they 
know  of  no  lawful  impediment  to  such  marriage,  and  that  in  case 
either  of  the  parties,  not  being  a  widower  or  widow,  is  under  the  age 
of  twenty-one  years  that  the  consent  of  the  persons  or  person  re- 
quired by  law  has  been  obtained  thereto,  or  that  there  is  no  person 
having  authority  to  give  such  consent  as  the  case  may  be. 

(5)  The  cost  and  fees  for  marriage  by  licence  shall  be  five  shillings 
stamp  on  each  Certificate  of  Marriage,  twelve  shillings  and  sixpence 
to  the  Superintendent  Registrar  as  his  fee  and  cost  of  advertisements, 
and  ten  shillings  if  he  acts  as  Principal  Witness,  and  not  less  than  ten 
shillings  to  any  other  Principal  Witness  as  his  fee. 

Marriage  by  Special  Licence. — 10.  In  the  event  of  any  party  to  an 
intended  contract  of  marriage  being  unable  to  contract  marriage 
under  the  provisions  of  this  Act  by  reason  of  approaching  death 
or  by  reason  of  any  physical  or  other  infirmity,  it  shall  be 
lawful  for  the  contracting  parties  to  apply,  through  the  Superin- 
tendent Registrar,  for  a  special  licence  for  contracting  such  marriage, 
and  the  Registrar-General,  with  the  sanction  of  the  Lord  Chancellor, 
shall  have  power  to  issue  a  special  licence  for  contracting  such 
marriage  on  such  conditions  and  terms  as  the  Registrar-General 
shall  determine. 

Illegalities. — n.  Any  Principal  Witness  or  any  other  witness  who 
shall  wrongly  and  wilfully  sign  any  Certificate  of  Marriage  made 
under  this  Act  for  the  purpose  of  securing  or  aiding  an  illegal  contract 
of  marriage  shall  be  liable  to  prosecution  before  His  Majesty's  High 
Court  of  Justice  by  the  Superintendent  Registrar  of  the  district 
acting  on  behalf  and  with  the  authority  of  the  Registrar-General, 
and  shall  suffer  the  penalties  of  perjury. 

Ministers  of  Religion  protected. — 12.  Nothing  in  this  Act  or  any 
other  Act  or  Acts  directing,  controlling,  or  affecting  marriages  shall  be 
construed  as  requiring  any  Minister  of  Religion  to  act  as  Principal 
Witness  under  this  Act,  or  as  requiring  him  to  officiate  at  the  religious 
ceremony  of  any  marriage,  and  nothing  in  this  Act  or  any  other  Act 
or  Acts  shall  be  construed  as  requiring  any  Minister  of  Religioner 
the  authorities  of  any  church  or  of  any  place  of  worship  to  use  or 
lend  his  or  their  church  or  place  of  worship  for  the  solemnization  of 
any  marriage. 


240  APPENDIX  C 

Laws  requiring  buildings  to  be  registered  for  public  worship,  and 
licensed  for  solemnisation  of  marriage  repealed. — 13.  On  and  after  the 
date  of  the  passing  of  this  Act,  any  Act  or  Acts  requiring  buildings 
used  or  to  be  used  for  places  of  worship  to  be  registered  and  any 
Act  or  Acts,  requiring  places  of  worship  to  be  licensed  for  the  solemni- 
sation of  marriage  shall  be  repealed. 

This  Act  to  be  cited  with  other  Marriage  Acts. — 14.  On  and  after  the 
date  of  disestablishment  Part  II  of  this  Act  shall  be  incorporated 
and  cited  with  the  Marriage  Acts,  1823  to  1907,  except  so  far  as 
these  Acts  are  repealed  by  the  Sixth  Schedule  annexed  to  this  Act, 
and  the  said  recited  Acts,  or  parts  of  the  same  not  hereby  repealed, 
shall  be  construed  and  interpreted  in  harmony  with  this  Act,  and 
nothing  in  this  Act  shall  repeal,  alter  or  affect  any  of  the  said  recited 
Acts  or  parts  of  the  same  not  hereby  repealed  except  so  far  as  is 
necessary  to  construe  and  interpret  the  same  in  harmony  with  this 
Act,  and  to  carry  out  the  provisions  of  this  Act. 

Foreign  Marriage  Acts  not  affected. — 15.  Nothing  in  this  Act  shall  be 
construed  or  interpreted  to  repeal  or  alter  any  of  the  Marriage  Acts, 
1849  to  1891,  dealing  with  marriages  in  foreign  countries. 

Notary  Public. — 16.  On  and  after  the  date  of  disestablishment  the 
name  of  the  Lord  Chancellor  shall  be  read  for  the  name  of  the 
Archbishop  of  Canterbury  or  the  Master  of  Faculties  in  any  Act  or 
Acts  affecting  the  appointment  or  controlling  the  office  of  Notary 
Public. 


INDEX 


"  Acatholici "     not    under     Ne 

temere,  217 
Adultery,  n 

our    Lord's    teaching    about, 

22-24 

Affinity,  9,  31,  123,  126,  149,  157 
Agde,  Council  of,  151 
Age  of  consent,  26 
Alexander  VI,  101 
Ambrose,  St.,  45 
American  law,  105 
Appel  comme  d'abus,  194,  214 
Aquinas,  St.  Thos.,  on  control  of 

marriage  by  civil  law,  85 
on  marriage  of  unbelievers,  56 
on  polygamy,  14,  1 6 
on  sacramental  grace  of  mar- 
riage 51 

political  theory  of,  167 
Aristotle,  definition  of  civilized 

man,   i 

Politics,  164,  167 
Aries,  Council  of,  120 
Arsenius  of  Mount  Athos,  124 
Articles  Organiques  of  Napoleon, 

198 
Artificial  restraint  on  marriage, 

57 

Athanasius,  St.,  124 
Athenagoras,       Legatio        pro 

Christianis,  118 
Augustine   of    Canterbury,   St., 

131 
M.C.S. 


Augustine  of  Hippo,  St.,  dissol- 
ubility of  marriage  before 
baptism,  19 

on  Old  Testament  poly- 
gamy, 103 

on  polygamy,  12 

on  sacramental  character  of 
marriage,  40,  57 

three  ends  of  marriage,  14 


Baeda,  Historia  Ecclesiastica, 
132  n. 

Bellarmine,  doctrine  of  inten- 
tion, 55 

Benedict  XIV,  on  dispensation, 

95 

on  matter  and  form,  83 
on  matrimonium  conscientiae, 

99 

Benediction,  The  nuptial,  50 
Benedictio  thalami,  46 
Beveridge,  Synodicon,  180 
Bigamy  in  English  law,  186,  203 
Billuart,  on  contract   and   sac- 
rament, 54,  195 
on  matter  and  form,  44 
Bingham,  120 

Birth  before  wedlock,  legitima- 
tion of,  142 

Bishop,  a  husband  of  one  wife,  13 
Bobbio,  Sacramentary  of,  46 
Bona  matrimonii,  14 


241 


242 


INDEX 


Boniface  VIII,  155,  157 

Borgia,  St.  Francis,  160 

Boudinhon,  Le  Canoniste  Con- 
temporain,  198,  216  n. 

Bousset,  Wilhelm,  24 

Bradley,  The  Rev.  J.  K,  pro- 
posed reform,  236-40 

Brouwer,  De  iure  connubiorum, 
173 

Callistus,  case  of,    73,  in,  119, 

121 

Calvinism,  influence  of,  196 
Calvin,  on  civil  control  of  mar- 
riage, 170 
Calvin's      conception      of      the 

Church,  1 66 

Canada,  French  law  in,  214 
Canon      Law     from     apostolic 

times,  117 

in  Eastern  Church,  1 1 1 
in  English  Church,  206 
in  Western  Church,  1 1 1 
Celibacy  of  clergy,  58 
Ceremony,  twofold,  47 
Christian,  duty  of  the  instructed, 

221  ff. 

Empire,  The,  120  f. 
Law,  Original,  116  ff. 
Chrysostom,  St.  John,  45 
Church  and  State,  conflict    be- 
tween, 206,  209  ff.,  223 
The  task  of  the,  72,  213 
Civilization,  standard  of,  2,  4 
Civil  law  of  Rome,  74 

Marriage,  79,  197  ff.,  200,  207 
Civitas  Dei,  163 

Clandestine  marriages  in  Lon- 
don, 189 

Clandestinity,  83,  99,  160  ff.,  189 
Clergy,  marriage  of,  122 
Clothaire,  King,  case  of,  131 
Code  Napoleon,  174,  196,  201 
Cognatio,  148 


Coke,  Sir  Edward,  184,  189 

Communitas  perfecta,  164 

Community  of  goods,  10 
abatement  of,  98 

Concubinage  and  marriage, 
difference  between,  27,  64, 
210 

Concupiscence,  52,  54 

Confarreatio,  47 

Consanguinity,  30,  126 
dispensation  for,  101 

Consent  necessary,  28 

of  parents  held  essential,  26 

Consuetudo,  141 

Consummation  of  marriage,  7,  32 

Continence,  52 

Contract  becoming  a  Sacrament, 

86,  195 

distinguished  from  the  Sacra- 
ment, 194 
of  marriage,  25 

Contractual    nature    recognized 

in  Jewish  Church,  112     | 
theory  of  marriage,  27,  63 

Converts,  marriage  of,  56 

Corpus  luris  Canonici,  138 

Counter-Reformation,  The,  175 

Coutume  de  Paris,  194  n.,  214 

Crowning  of  Bride,  49 

Cyprian,  St.,  on  the  Episcopate, 
71  f. 

Davidson,  Archbishop,    of 

Canterbury,  223  f.,  232-5 
Death  dissolves  marriage,  16 
Deceased  Wife's  Sister,  131,  182, 

184,  205 

Decretals,  The  forged,  136 
Decretum  of  Gratian,  136,  153 
De  excommunicatio  capiendo,  147 
De    Smet,    De    Sponsalibus    et 

Matrimonio,  85  n.,  153  n. 
Deuteronomic    Law     and     Our 

Lord,  116 


INDEX 


243 


Diaspora,  The,  69 
Dionysius  Exiguus,  136 
Disparitas  Cultus,  80,  130,   154, 

216 
Dispensation,  61,  87,  144 

bad  effects  of,  92,  100, 119, 159 
difference  between  human  and 

divine  law,  95 
in  Eastern  Canon  Law,  126 
Dissolubility    of     marriage,    al- 
lowed by    Reformed  Theo- 
logians, 172,  197 
condemned,  103 
not  taught  by  Greek  Church, 

104 
Dissolution  of  marriage,  alleged 

grounds  of,  17 
Divine  law  of  marriage,  6 
Divorce  Act  of  1857,  The,  203 
by  mutual  consent,  98 
in  Eastern  Canon  Law,  126 
in  England,  209,  226 
in  France,  201 
in  Reformation  times,  171 
in  Western  Canon  Law,  146 
Jewish,  115 
strict  definition  of,  96 
Dollinger,  Hippolytus  and  Cal- 

listus,  73  n. 
Dowry,  98 

Eastern  Church,  re-marriage  of 

divorced  persons,  104 
relations  with  State,  128 

Ecclesia  Anglicana,  177 

Ecclesia,     significance     of     the 
word,  109 

Ecclesiastical    tribunals,    proce- 
dure of,  145 

Economy  of  grace,  61 

TEyKparcia,  52 

Enforced  consent,  28 

England,    particular    needs    of, 
225 


English  Canon  Law,  206 

Marriage  Acts,  effect  of,  207 
Marriages    Act    of    1753,   see 

Hardwicke,  Lord 
Reformation,  177 

Episcopate,  authority  of,  71,  144 

Epistola  ad  Diognetum,  118 

Esmein,   Le    Mariage    en   Droit 
Canonique,  71,94 

Espousals  de  futuro,  30 

in  Eastern  Canon  Law,  126 
Jewish,  113 

Exclusiveness  of  marriage  bond, 
10 

Exogamy,  30  f.,  80 


Fardell,  The  Higher  Aspects  of 
Greek  Religion,  43  n. 

Fleet  Marriages,  190 

Foljambe,  case  of,  186 

Fornication    as    a    reason     for 
divorce,  23 

French    Constitution    of    1792, 

The,  197 
Law,  79,  83 

Gasparri,  Tract.  Can.  de  Matri- 

monio,  85  n. 

Gelasian  Sacramentary,  45 
Germany,    marriage    difficulties 

in,  215 

Gore,  Bishop,  of  Oxford,  222 
Gratian,  Decretum  of,    48,    136, 

157  n. 

Gregorian  Sacramentary,  45 
Gregory  Nazianzen,  St.,  45 
Gregory  the  Great,  St.,  131 
Guardianship  of  both  parents,  7 

Hadrian  II,  case  of,  155 
Hague  Conference,  The,  220 
Halizah,  114 


244 


INDEX 


Hardwicke,  Lord,  Marriages  Act 

of  i?53>  83>  191.  207 

Harnack,  on  the  origins  of  Canon 
Law,  69  f . 

Hefele,  120 

Helvetic  Reformation,  166 

Henri   IV  of  France,  Edict  of, 
176 

Henry  VIII,   101,  103,  150,  158, 
165,  177,  181 

Hermas,    on   cohabitation   with 

adulteress,  25 
Pastor,  118 

Hincmar    of    Reims,     on    con- 
summation of  marriage,  48 

Hooker,  Richard,  on  human  law, 

59 

on  sacraments,  41 
on  union  of  Church  and  State, 

1 7<9 

Hort,  The  Christian  Ecclesia,  109 
Hugh  of  St.  Victor,  84 
Human  law  v.  Divine  law,  60,  75 

v.  Natural  law,  59,  66,  68 
Human  love,  3 

Ignatius,  St.,  117 
Illiberris,  Council  of,  119,  155 
Impediments,   affinity,  31,   123, 
126,  149 

civil  in  France,  205 

classification  of,  151 

cognatio  spiritualis,  126,  157 

consanguinity,  30,  126 

crime,  158 

diriment,  82  fi.,  125,  153 

disparitas  cultus,  80,  130, 154, 
216 

dispensation  of,  145 

enforced  consent,  28 

error,  28 

force,  28 

Holy  Orders,  128, 155 

imperfect  intention,  27 


Impediments,  impotence,  28 

in  Eastern  Canon  Law,  126 

in  Jewish  Law,  113  f. 

legal,  82,  208 

ligamen,  29,  102 

natural,  80 

precontract,  29 

publica  honestas,  158 

raptus,  196 

restriction  of,  149 

tempus  feriatum,  81,  152 

vows  of  religion,  81,  154 
Imperium  in  imperio,  68 
Incest,  30,  10 1,  223 
Incontinency,  53 
Indissolubility  of  marriage,  16, 18 

in  medieval  Canon  Law,  160 
Individuality,  8 
In      facie    Ecclesiae,     marriage 

required  to  be,  78,  189 
Innocent  I,  121  n.,  122,  134 
Intention,  doctrine  of,  55 
International   law   of    marriage 

desired,  220 
Irish  Law,  78 

Isidore  of  Seville,  6  n.,  136 
lus  connubii,  80 

Jansenism,  influence  of,  196 
Jesuit  Theologians,  The,  167 
Jewish  divorce,  115 

Law,  112, 
Jurists  of  Leyden,  see  Leyden, 

University  of 
Justinian,  Laws  of,  123 

Kiddushin,   act   of    contracting 

marriage,  112 
Krmcaja  Kniga,  125 

Landeskirche,  165 

Lang,  Archbishop,  of  York,  222 

Laodicea,  Council  of,  152 


INDEX 


245 


Lateran  Council  of    1215,  The, 
148,  150 

Lateran  Council  II,  155  f. 

Laws  of  Church  and  State  con- 
current, 87 
of  marriage,  different,  78  f. 

Legislative  power  of  the  Church, 

70 

of  the  Church,  resides  in  the 
Episcopate,  71 

Leo  the  Philosopher,   Emperor, 

124 
XIII,  85  n.,  168  n. 

Leonine  Sacramentary,  45 

Lerida,  alleged  Council  of ,  152 

Levirate,  Law  of  the,  114 

Levitical  degrees,  182-5 

Leyden,  University  of,  170,  173, 
221 

Licence,  Marriage  by,  92,  238  f . 

Lombard,   Peter,   on   the  seven 
Sacraments,  42 

Luther,  on  civil  control  of  mar- 
riage, 169 

Luther's  revolt   against    Canon 
Law,  165 

Lyndwood,  Provinciate,  134 

Macchiavelli,  175 

Macfadyen,    Rev.  D.,  on  indis- 

solubility  of  marriage,  18  n. 
Maitland,  Roman  Canon  Law  in 

the  Church  of  England,  141 
Malta,  Marriage  Law  of,  215 
Marriage,  a  natural  institution, 

3 

a  remedy  against  sin,  52  f. 
artificial  restraints  on,  57 
best  law  of,  107 
breach  of  bond  a  sacrilege,  66 
crowns,  49 

whether  dissolved  by  unfaith- 
fulness, 105 


Marriage,  Divine  law  in,  6 

equality  in,  33-5 

forbidden  at  certain  seasons, 
81 

laws  for  the  faithful,  74 

original  and  natural  institu- 
tion of,  116 

purpose  of  God  in,  5 

religious  institution  in  Russia, 
a,  129 

sacramental  character  of,   15, 

34-44.  54.  64  f- 
sacramental  grace  of,  50 
sacramental,       peculiar        to 

Christians,  54 
special  legal  disqualifications, 

81 
Married  Women's  Property  Act, 

99,  204 

Marsiglio  of  Padua,  70,  164,  178 
Matrimonium     conscientiae,    99, 

208 

Matter  and  form,  43,  83 
Mental  incapacity,  26 
Mielziner,   The    Jewish    Law    of 

Marriage  and Divorce,ii2  n., 

114  n. 
Milasch,    Bishop    of    Zara,  Das 

Kirchenrecht     der    Morgan- 

Idndischen    Kirche,    104  n., 

124  f.  n.,  127,  129 
Mileve,  Council  at,  121 
Mixed  marriages,  201,  216 
Modern  State,  definition  of,  162 
States    claim    regulation     of 

marriage,  74 
Mohammedan  laws  of  marriage, 

74 
Monogamy,  reason  for  in  nature, 

14 
Morel,  E.  D.,  Nigeria,  its  People 

and  Problems,  103  n. 
Morganatic  marriages,  99 
37 


246 


INDEX 


Mysteries,  Greek,  43 

of  God,  36-43 
g  Philo,  on,  38 

seven  Holy,  42 
Mystery,  meaning  of  the  word,  39 

Nantes,  Edict  of,  194 
Natural  law,  definition  of,  6  n 
Necessity,  laws  yield  to,  61 
Ne  temere  decree,  216,  227-31 
Nicholas    I,   Responsa    ad    Bul- 

garos,  46 
Nomocanon,  124 
Northampton,  Marquis  of,  case 

of,  185 
Nullity,  82,  151 

of       marriage      in      English 

Courts,  78 
of  marriage  in  Roman  Courts, 

78 
Nuptial  masses,  45 

Origen,  on  divorce,  118  f. 
Orleans,  second  Council  of,  130 
third  Council  of,  131 

Pallavicino,  Istoria  del  Cone,  di 

Trento,  104  n. 
Panormia  of    Ivo  of  Chartres, 

136 

Papacy,  144,  164 
Parental  instinct,   consequences 

of,  3 

Parents,  consent  of,  26 

Parker,  Archbishop  Matthew, 
Admonition  of ,  183 

P atria  potestas,  8,  81 

Peculiars,  143 

Philip  of  Hesse,  102 

Philo,  on  mysteries,  38 

Physical  incapacity,  28 

Pistoia,  Synod  of,  197 

Plato,  marriage  ignored  in  Re- 
public, 63 


Plato's  conception   of   an   ideal 

society,  7 

Polygamy,  n,  13,  101 
dispensation  for,  102  ff. 
English  Courts  on,  102 
evils  of,  15 
Luther  on,  102 
of  Old  Testament  Saints,  12 
prohibited  for  Jews,  112 
successive,  103 
Portalis,  196 

Pothier,    Traite    du    contrat    de 
Marriage,   176   n.,    194    n., 
195,  210  n. 
Power  of  bishops,  72 
Precontract,  123,  182 
Primitive  man  not  represented 

by  savage  tribes,  4 
Privilegium  Paulinum,  20,  171, 

<     194  n. 
Prohibited   degrees,  Archbishop 

Parker  upon,  183,  205 
Puller,  Fr.,  Marriage  with  a  De- 
ceased Wife's  Sister,  31  n. 
Punishment  for  disobedience  to 

Divine  law,  75 
Purpose  of  God  in  marriage  5, 


Quaker  marriages,  190,  191,   192 
Quinisext  Council,  see  Trullo. 

Raymond  of  Pefkfort,  138 
Reformatio  Legum,  185 
Reformation,  The  impulse  of  the, 

175 
Reformed  Theologians,  The,  171 

Reforms  suggested,  225 
Registration  of  marriage,  79 
Remarriage   after    divorce,    21, 

127,  185,  187,  202,  210 
Remedy   against    sin,    Marriage 

a,  36,  5<>.  52  f. 


INDEX 


247 


Renton  and  Phillimore,  Com- 
parative Law  of  Marriage, 
219  n. 

Respublica  Christiana,  133,  162 
Restitution  of    conjugal    rights, 

79,  204 

Restriction  as  to  age,  81 
as  to  consent,  81 
as  to  crimes,  82 
as  to  season,  81 
Rituale  Romanum,  153 
Ritual  of    marriage,    Christian, 

44 

English,  48,  50 

Greek,  43 

Roman,  47,  49 
Rituel  d" 'A  let,  205  n. 
Roman  Law,  definition  of  mar- 
riage in,  7 

effect  of  the  study  of,  164 
Roos,  Lord,  case  of,  187 
Rota  at  Rome,   decision  of,   78 
Royal  Marriages  Act,  83,  91 

Sacramental  character  of  mar- 
riage, 15,  36-44,  51  ff.,  64 

Sacrament  inseparable  from 
Christian  marriage,  55 

Sacramentum,  meaning  of  the 
word,  39 

Sanatio  in  radice,   89,    ioo>    125 

Sarum  Manual,  48 

Schools  of  Shammai  and  Hillel, 

"5 
Scottish  Law,    76    ff.,   87,    174, 

200,  221 

Reformation,  167 
Seasons,   marriage  forbidden  at 

certain,  81,  152 
Second  marriages,  58,  102 
Separation  of  Church  and  State, 

176,  193 

resistance  to,  179 
separation  orders,  203 


Social  animal,  Man  a,  i 
Societas  perfecta,  167 
Societies    within  the   State,    66 
Sohm,    Rudolf,    on   legalism   in 
the   Church,    68,    108,    no, 

165 

Special  licence,  92 
Spiritualty,       power      of      the, 

134  ff.,  188  ff. 
Sponsalia,  29 

Standard  of  civilization,  2,  4 
State  control  cannot  be  denied,  87 
Submission  of  Clergy,  Act  for  the, 

178,  181 
Switzerland,  Federal  Code  of,  99 

Tametsi  decree,  162 
Tempus  feriatum,  152 
Territorial       exemptions      from 

Ne  temere,  217  f. 
Tertullian,  on  Marriage,  45 
on  marriage  with   unbelievers, 

119 

Theocracy,   evils  of,  116,  139  f. 
Theodore  of  Tarsus,  Archbishop 

of  Canterbury,  127 
Toledo,  First  Council  of,  121 
Trent,  Council  of,  104,  153,  157, 
167 

on    Clandestinity,    83,    160, 

i95»  214 
Trullo,   Council  in,  58,    122   ff., 

127 
Turkish  Law,  128 

Uncle  and  niece,  marriage  of,  114, 

123 

Uniform  system  needed,  219 
Union  marital,  produces  natural 

affection,  9 
Unitary  sovran  state,  the  theory 

of  an,  67 
Urban  II,  Decretal  of,  156 


248  INDEX 

Valid  marriage,  conditions  of,  27  Western  Church  upheld  Church 
Veiling  of  Bride,  49  rule,  74 

Verba  de  praesenti,  48,  190  Wood,   E.  G.,  on  nature  of  dis- 
Virginity,  St.   Paul's   preference  pensation,  94  «. 

for,  52  Worms,  Rabbinical  Synod  of,  113 


PRINCIPAL  SCRIPTURE  REFERENCES 


Leviticus  xviii. .  182 
Deuteronomy  xxiv.  i,  2.  .115 
,,  xxv.  7-10.  .114 

Ruth  iv.  7.  .114 
Jeremiah  iii.  14 . .  37 
Hosea  ii.  19.  .37 
Wisdom  ii.  22.  .38 

xiv.  15,  23.. 38 
Tobit  vii.  14.  .113 
Matthew  i.  18 . .  1 13 
,,        v.  32.  .23,  116 
„        xvi.  18.  .109 
„        xviii.  17.  .109 
„        xix.  3-9.  .116 
„        xix.  4-8.  .7  f. 
xix.  9.. 23 
xix.  ii.  .97 
Markx.  8.. 8 

„     x. ii.. 23 
Luke  ii.  27.  .113 


Acts  xv.  29.  .117 
,,    xvii.  30.  .61 
Romans  vii.  1-3.  .22 
i  Corinthians  v.     i.  .32,     73, 

10 1,  149 
vi.  I6..8 
vii... 73 
„  vii,  2-4.  .16 

vii.  9.. 51 
„  vii.  10,  ii.  .20 

vii.  14..  57 
„  vii.  36.  .115 

vii.  39..  17,  81 
Galatians  v.  23 . .  52 
Ephesians  v.  28,  29.  .10 

v.  32.. 37 

i  Timothy  iii  2.  .13 
v.  9..I3 
James  i.  i .  .69 
i  Peter  i.  i . .  69 


Printed  by  BUTLER  &  TANNER,  Frame  and  London, 
249 


WORKS  BY  THE  RT.  REV.  G.  H.  S.  WALPOLE,  D.D. 

(Bishop  of  Edinburgh). 

Life's  Chance.    Demy  8vo.    Cloth  gilt,  43.  6d.  net. 
Personality  and  Power;  or,  the  Secret  of  Real  Influence. 

Fifth  Edition.     Crown  8vo.     Cloth,  2s.  6d.  net. 

"The  book  to  give  a  boy  when  he  takes  up  his  life-work." — Commonwealth. 
"A  series  of  thoughtful  addresses  on  the  secret  of  real  influence.     The  book  is 
one  well  worth  careful  study ;  its  reflections  will  be  found  stimulating." — New  Age. 
' '  A  thoughtful  and  beautiful  book.     These  addresses  are  mature  and  sympathetic, 
and  fitted  to  be  most  helpful. " — Church  Family  Newspaper. 

Vital  Religion ;  or,  the  Personal  Knowledge  of  Christ. 

Twelfth  Edition.     Crown  8vo.     Cloth,  2s.  6d.  net. 

"The  keynote  in  this  interesting  and  beautiful  book  is  the  thought  that  religion 

is  essentially  the  life  of  friendship  and  intimacy  with  God  revealed  in  Jesus 

Christ. " — Guardian. 

"  This  book  has  the  true  tone  of  sincere  and  earnest  piety,  and  the  ring  of  honest 

conviction  ;  we  like  it,  and  we  like  the  personality  which  seems  to  lie  in  peace 

and  confidence  behind  it." — St.  Andrew. 

"This  is  a  fresh  and  interesting  presentation  of  a  perennially  important  subject. 

.  .  .  The  book  is  characterised  by  a  spirit  of  true  devotion  to  our  Lord,  and  is 

marked  throughout  by  earnestness  of  thought  and  appeal.  "—Life  of  Faith. 

The  Kingdom  of  Heaven ;   What  it  is  and  how  we 

enter  it.     Third  Edition.     Crown  8vo.     Cloth,  2s.  6d.  net. 

"  This  timely  and  valuable  contribution  to  current  theological  thought  is  full  of 

ideas  presented  with  much  freshness,   as  well    as   scholarship    and  sanctified 

com  mon-sense. ' ' —  Guardian . 

"  The  value  of  this  book  is  quite  out  of  proportion  to  its  size.     Written  with  all 

Dr.  Walpole's  unfailing  charm  of  spirit  and  literary  grace  it  makes  the  reader 

think." — Record. 

The  above  three  volumes  can  be  obtained  in  a  special  Presentation 
Edition,  limp  leather,  full  gilt  back,  gilt  edges,  silk  register, 
43.  6d.  net  each. 

Gains  and  Losses.    Crown  8vo.    Cloth  boards,  is.  6d.  net. 

"Every  line  is  worth  reading,  as  all  Bishop  Walpole  writes  is  marked  by  deep 

spiritual  insight  and  sound  common -sense." — Rtcord. 

•'  A  stimulating  book,  which  should  startle  many  into  serious  reflection." 

Guardian. 

Daily  Teachings  for  the  Christian  Year.     Selected  and 

Arranged  by  the  Bishop  of  Edinburgh.  Cloth,  33.  6d.  net.  Presentation 
editions,  paste  grain,  padded,  gilt  lettered,  J$.  6d.  net ;  morocco  limp,  round 
corners,  gilt  lettered,  IDS.  6d.  net. 

"Bishop  Walpole  has  made  an  admirable  collection  of  extracts  from  famous 
preachers,  really  reading  like  miniature  sermons.  They  deal  suitably  with  each 
day  in  the  Christian  Year." — Church  Family  Newspaper. 

Paraphrase  Method  of  Bible  Study.      As  recommended 

by  the  Bishop  of  Edinburgh.  Paper,  id.,  or  6s.  3d.  per  100  ;  wrapper,  2d., 
or  I2s.  6d.  per  100. 

Edited  by  the  Rt.  Rev.  G.  H.  S.  WALPOLE  and  the 
late  Rev.  C.  BARTON. 
Handy  Atlas  to  Church  and  Empire.    Comprising  120 

Maps,  Plates,  and  Statistical  Tables,  showing  the  Advance  of  Missions  in  All 

Parts  of  the  British  Empire  to  the  Present  Day.     Cloth,  is.  6d.  net. 

Mr.  EUGENE  STOCK  :  "  It  is  simply  delightful,  full  of  valuable  information." 

BISHOP  OF  ST.  ALBANS:  "Most  admirable." 

BISHOP  OF  ST.  GERMAINS  :  "  Excellent  both  in  design  and  execution,  and  must 

prove  of  great  service  to  all  interested  in  Foreign  Missions." 


WORKS  BY  THE  RT.  REV.  G.  H.  S.  WALPOLE,  D.D. 

(Bishop  of  Edinburgh). 
Communion  and  Offering.     Simple  Instructions  upon  the  s 

Office  of  Holy  Communion,  together  with  Helps  for  the  carrying  out  of  same. 
Fifth  Edition.  Limp  cloth,  uniform  with  Prayer  Book,  is.  ;  leather,  23.  ; 
lambskin,  33.  ;  Persian  calf,  33.  6d. 

Canon  BENHAM  :  "  It  strikes  me,  at  this  moment,  as  about  the  best  on  Holy 
Communion  which  I  have  ever  seen." 

The  Rev.  B.  M.  O.  HANCOCK  :  "I  feel  the  book  is  worthy  of  unqualified 
recommendation.  It  meets  a  real  need  ;  the  devotions  and  instructions  are 
fervid,  wise,  and  catholic." 

"  The  value  of  this  excellent  little  book  is  very  great.  It  is  for  busy  people  who 
want  short  and  good  prayers,  and  who  welcome  sound  instruction  if  it  can  be 
briefly  given.  .  .  .  The  whole  forms  a  singularly  complete  and  convenient 
manual,  and  we  cannot  doubt  that  it  will  be  widely  adopted." — Guardian. 

Holy  Communion,  A  Simple  Guide  to.    Cloth,  6d. 
The  People's  Prayer  Book.     Containing  also  the  People's 

Psalter,  as.  6d.  net  ;  combined  with  Hymns  Ancient  and  Modern.  Cloth, 
33.  net. 

A  practical  Prayer  Book,  containing  the  order  of  Morning  and  Evening  Prayer, 
with  the  People's  Psalter  and  Hymns  Ancient  and  Modern.  Bound  in  one 
volume,  with  Explanatory  Notes  of  the  proper  meaning  and  purpose  of  each 
portion  of  the  service.  The  book,  in  its  handy  and  compact  form,  meets  a 
distinct  need,  and  will  prove  a  real  help  to  private  and  public  devotion. 

The  People's  Psalter.      Containing  the  Psalms  of  David, 

together  with  the  Litany  and  the  Canticles  and  Hymns  of  the  Church. 
With  the  Pointing  of  the  Cathedral  Psalter  (by  permission).  Foolscap  8vo. 
Cloth,  23.  6d. 

"The  usefulness  of  an  already  useful  and  popular  work  has  been  greatly 
increased. " — Guardian. 

"  This  Psalter  forms  a  volume  that  will  prove  useful  and  instructive  to  many  a 
worshipper,  and  it  should  have  a  large  circulation." — Oxford  Chronicle. 

The  People's  Psalter.  A  Plain  Book  for  those  who  wish  to 
use  the  Psalms  in  Church  with  Intelligence  and  Devotion.  Seventh  Edition. 
Cloth,  2s.  ;  leather,  33.  ;  lambskin,  33.  6d.  ;  Persian  calf,  43.  6d. 

BISHOP  OF  DURHAM  :  ' '  The  book  seems  to  be  admirably  adapted  for  its  purpose, 
and  I  trust  it  will  have  a  very  wide  usefulness. " 

41  We  think  that  this  little  book  may  be  a  useful  help  by  suggesting  ways  in  which 
different  Psalms  may  be  applied  to  present-day  difficulties  and  to  the  problems 
and  anxieties  with  which  the  Church  is  always  confronted." — Guardian. 

Christ  in  the  Home,  Suitably  bound  in  white,  with  gilt 
design  and  gilt  top,  6d.  net ;  cloth  gilt,  IS.  net.  Presentation  Edition,  velvet 
leather,  gilt  edges,  silk  register,  23.  net. 

"  Canon  Walpole's  teaching  is  so  emphatically  timely,  so  faithful,  so  completely 
calculated  to  elevate  and  purify  home  ideals,  that  we  commend  it  unreservedly." 

Sunday  Strand. 

The  Doctrine  of  the  Resurrection.    Paper  Covers,  2d. 
"  In  the  Mount  of  the  Lord  it  shall  be  seen."      The 

frontispiece  from  "  Communion  and  Offering."  Reprinted  on  cardboard  and 
enlarged,  size  16  ins.  by  10$  ins.,  for  use  in  Classes.  4<i.  net. 

The  Litany  Divided  and  Arranged  for  Particular  Inter- 
cession. Demy  i8mo.  8  pp.  One  Halfpenny. 

LONDON  :    ROBERT   SCOTT,    PATERNOSTER   ROW,    E.G. 


SPECIMEN    PAG. 


42 


ST.  PAUL'S  EPISTLE  TO  THE  GALATIANS     [CHAP,  iv 


Spirit  of  his  Son  into  our  hearts,  crying,  Abba,  Father. 
7  So  that  thou  art  no  longer  a  bondservant,  but  a  son ; 
and  if  a  son,  then  an  heir  through  God. 


desire  for  prayer,  for  approach  to 
God  as  Father,  is  a  witness  to  our 
divine  nature  ;  it  is  the  yearning  of 
the  soul  made  in  the  image  of  God 
which  can  know  no  rest  till  it  find 
rest  in  Him.  This  instinctive 
yearning  is  due  to  the  indwelling 
Spirit. 

the  Spirit  of  his  Son]  The 
parallel  with  Rom.  viii.  14-17  is 
very  close.  There  we  have  'the 
spirit  of  adoption  whereby  we  cry 
Abba,  Father '.  This  is  one  of  the 
passages  which  make  it  difficult  to 
say  how  far -St.  Paul  definitely  dis- 
tinguished between  Christ  and  the 
Holy  Spirit. 

Abba,  Father]  Rom.  viii.  15 ; 
Mark  xiv.  36.  Abba  is  the  Aramaic 
for  father ;  cf.  Bar-abbas,  abbot.  It 
is  probable  that  the  expression  was 
a  liturgical  formula,  derived  from 
the  opening  words  of  the  Lord's 
Prayer.  Moulton,  Grammar  ofNeiv 
Testament  Greek,  Prolegomena, 
p.  10,  suggests  that  the  original 
word  was  retained  'from  the  pecu- 
liar sacredness  of  its  associations'. 
He  compares  the  devout  Roman 
Catholic  saying  his  paternoster,  but, 
as  a  good  Protestant,  he  adds, 
'  Paul  will  not  allow  even  one  word 
of  prayer  in  a  foreign  tongue  with- 
out adding  an  instant  translation.' 
At  the  same  time  the  combination 
of  the  two  words  is  a  good  illustra- 
tion of  the  fusion  of  Hebrew  and 
Greek  elements  in  the  one  Church, 
though  it  is  hardly  likely  that  St. 
Paul  meant  to  suggest  this  directly. 
It  is  still  less  probable  that  the 
foreign  word  is  meant  to  suggest 
the  ecstatic  utterance  of  the  '  gift  of 
tongues  ',  regarded  as  the  most  con- 
spicuous manifestation  of  the 
Spirit's  presence  (Bacon). 


In  i  Cor.  xvi.  22  we  have  the 
Aramaic  maranatha,  as  a  sort  of 
watchword  of  the  Christian  commu- 
nity ;  in  Rev.  i.  7  nai (Greek  'yea') 
and  amen  (Hebrew)  are  combined, 
and  mari  qlri  (or  kiri),  the  Aramaic 
and  Greek  for  'my  lord',  is  found 
in  Rabbinical  writings  (Lukyn 
Williams). 

7.  no  longer  a  bondservant] 
The  metaphor  of  w.  i,  2  is  defi- 
nitely dropped,  since  in  this  and  the 
following  verses  the  figure  of  the 
son  who  technically  has  the  status 
of  a  slave  would  not  do  justice  to 
the  thought ;  actual  spiritual  bond- 
age is  referred  to. 

In  illustration  of  the  analogy  of 
redemption  from  slavery  in  this  and 
other  passages,  the  remarks  of 
Deissmann,  Light  from  the  Ancient 
East,  p.  326,  are  most  valuable. 
'  Among  the  various  ways  by  which 
manumission  of  a  slave  could  take 
place  by  ancient  law,  we  find  the 
solemn  rite  of  fictitious  purchase  of 
a  slave  by  some  divinity.  The 
owner  comes  with  the  slave  to  the 
temple,  sells  him  there  to  the  god, 
and  receives  the  purchase  money 
from  the  temple  treasury,  the  slave 
having  previously  paid  it  there  out 
of  his  savings.  The  slave  is  now 
the  property  of  the  god ;  not,  how- 
ever, a  slave  of  the  temple,  but  a 
protege  of  the  god.  Against  all  the 
world,  especially  his  former  master, 
he  is  a  completely  free  man.'  We 
find  repeatedly  in  inscriptions  and 
papyri  the  phrase  that  the  slave  has 
been  bought  by  Apollo  [or  some 
other  godj  Jor  freedom,  the  very 
words  used  in  Gal.  v.  i,  13.  It  is 
expressly  laid  down  that  he  may 
now  do  the  things  that  he  ivill,  v.  17. 
As  he  is  technically  the  property  of 


ST.    PAUL'S  EPISTLE    TO   THE   GALATIANS 

THIS  EPISTLE  IS  SET  FOR  THE 
JNIVERSITIES'  PRELIMINARY  EXAMINATION  1913  and  IS 

THE  LATEST  COMMENTARY. 

I     ST.  PAUL'S  EPISTLE 

TO   THE 

GALATIANS 

BY  THE  REV. 

CYRIL    W.    EMMET,    M.A. 

DEMY   8vo,   CLOTH,   38.   6d.    NET 


has  a  distinctive  character  as  taking  the 
point  of  view  that  Galatians  was  written  before  the  Apostolic 
Council  of  Acts  XV,  and  is  therefore  the  earliest  of  the  Pauline 
Epistles.  Both  in  the  Introduction  and  in  the  Notes  the 
writer  has  had  in  mind  the  needs  of  the  general  reader  of 
ordinary  education,  but  full  account  has  been  taken  of  the  work 
of  the  most  recent  writers  on  St.  Paul,  both  English  and 
German.  It  is  hoped  that  the  Commentary  will  serve  as  a 
further  illustration  of  how  much  the  Bible  gains  in  interest  and 
value  by  an  acceptance  of  the  standpoint  of  modern  criticism. 

The  Church  Times,  reviewing  an  earlier  work  by  the  Rev.  Cyril  Emmet,  says: 
"We  welcome  Mr.  Emmet  as  a  notable  addition  to  the  ranks  of  theology.  He  is 
possessed  of  a  sane  judgment  and  a  power  of  using  his  reading  without  being  mastered 
by  it,  We  shall  greatly  look  forward  to  a  more  sustained  effort  from  his  pen." 


LONDON:     ROBERT    SCOTT,    PUBLISHER, 
ROXBURGHE     HOUSE,     PATERNOSTER     ROW.     E.G. 


THEOLOGICAL     AND     DEVOTIONAL     WORKS. 

BY  THE  REV.  H.  G.  GREY,  M.A. 

A  COMMENTARY  ON  ST.  PAUL'S  EPISTLE  TO  THE  ROMANS.  Cloth,  3s.  6d.  net 
By  the  REV.  PRINCIPAL  H.  G.  GREY;  being  the  first  Volume  in  the  Readers' 
Commentary.  Other  Volumes  in  preparation  :— THE  FIRST  EPISTLE  TO  THE 
CORINTHIANS:  by  the  Rev.  DAW^ON  WALKER,  D.D.  THE  SECOND 
EPISTLE  TO  THE  CORINTHIANS :  by  the  Rev.  F.  S.  GUY  WARMAN,  B.D. 
THE  EPISTLE  TO  THE  GALATIANS  :  by  ihe  Rev.  CYRIL  EMMET,  M.A. 
Further  announcements  will  be  made  in  due  course  ;  full  particulars  may  be  obtained 
from  the  Publisher. 

THE  MINISTRY  OF  THE  WORD  AND  SACRAMENTS. 

By  JOHN  WILLIAM  DIGGLE,  D.D.  (Bishop  of  Carlisle).  Crown  8vo,  Cloth 
Gilt,  2s.  6d.  net. 

INTRODUCTION    TO    DOGMATIC    THEOLOGY    ON    THE    BASIS    OF    THE 
XXXIX.  ARTICLES  of  the  Church  of  England. 

By  the  late  E.  A.  LITTON,  M.A.  New  Edition,  Revised  by  the  Rev.  H.  G. 
GREY,  M.A.,  of  Wycliffe  Hall,  Oxford.  Introductory  Note  by  the  Rev.  Principal 
A.  J.  TAIT.  Demy  8vo,  Cloth,  10s.  6(1.  net. 

TOWARDS  A  PERFECT  MAN:  Studies  in  the  Making  of  Character 
(Second  Series;.  By  the  REV.  HENRY  W.  CLARK.  Cloth,  2s.  net. 

By  the  same  Author. 
STUDIES  IN  THE  MAKING  OF  CHARACTER.    Cloth,  2s.  net. 

LAWS  OF  THE  INNER  KINGDOM.     Cloth,  3s.  6d.  net 

"Full  of  seed-thought  to  preachers  and  teachers." — The  Churchman. 

SERMONS  ON  SOCIAL  SUBJECTS. 

Arranged  and  Edited  by  the  REV.  PERCY  DEARMER,  M.A. 

Cloth,  2s.  net. 

Vital  Questions  of  the  Day  by  the  following  leading  Theologians  :  J.  G.  ADDERLEY, 

M.A.  ;    Preb.  J.  WAKEFORD,  B.D.  ;    J.   E.  WATTS -DITCHFIELD,  M.A.  ;    A    J. 

CARLYLE,  D.D.  ;   Canon  MASTERMAN,  M.A.  ;   PERCY  DEARMER,  M.A.  ;  Canon 

SCOTT  HOLLAND,  D.D. 

THE  LIFE  HEREAFTER.     Thoughts  on  the  Intermediate  State.    2s.  net. 
By  the  REV.  EDWARD   HICKS,  D.D.,  D.C.L. 

THE  CROSS  IN  HOLY  SCRIPTURE.     A  Study  of  the  Nature  and  Signifi- 
cance of  Christ's  Redemptive  Work.    Cloth,  2s.  net. 
By  the  REV.  JAMES   LITTLE,  B.A.,  S.T.D. 

LOMBARD  STREET  IN  LENT. 

Edited  by  the  REV.  PERCY  DEARMER,  M.A.  Introduction  by  the  Rev. 
Canon  SCOTT  HOLLAND,  D.D.  Cloth,  Is.  6d.  net. 

GAINS  AND  LOSSES. 

By  the  RIGHT  REV.  G.  H.  S.  WALPOLE,  D.D.,  Bishop  of  Edinburgh.  Stiff 
Purple  Wrapper,  Is.  net ;  Cloth  Boards,  Is.  6d.  net. 

A  SIMPLE  GUIDE  TO  HOLY  COMMUNION.  Cloth,  6d. 

By  the  RIGHT  REV.  G.   H.  S.  WALPOLE,  D.D.,  Bishop  of  Edinburgh. 

IMITATION  OF  CHRIST. 

By  THOMAS  A  KEMPIS.  Faithfully  Rendered  into  English  Rhythm  after  the 
manner  in  which  it  was  written.  Pre'ace  by  the  late  Canon  LIDDON.  Cloth, 
2s.  net;  Velvet  Leather,  4s.  6d.  net. 

LONDON:  ROBERT  SCOTT,  PATERNOSTER  ROW.  E.G. 


THEOLOGICAL    AND     RELIGIOUS    WORKS. 

BY  THE  REV.  ALFRED   PLUMMER,  D.D. 

AN     EXEGETICAL     COMMENTARY     ON     THE 
GOSPEL   ACCORDING   TO    S.  MATTHEW. 

By  the  Rev.  ALFRED  PLUMMER,  D.D.     With  Full  General  and  Greek 
Indices.     Cloth,  12s. 

"  By  far  the  best  and  most  useful  English  work  on  S.  Matthew  that  has  appeared  in  our 
generation.  It  is  exactly  the  book  lor  which  students  have  been  waiting  many  years.  It  is 
indispensable  to  the  student  of  the  Gospels  as  the  best  commentary  on  S.  Matthew  in  the 
English  language." — Guardian. 

"A  valuable  addition  to  the  preacher's  shelves.  Dr.  Plummer's  work  is  pre-eminently  readable 
and  interesting,  and  his  exposition  is  always  sound  and  often  masterly.  This  makes  the  book 
one  of  the  best  commentaries  for  the  preacher  we  know.  No  student  can  give  himself  to  its 
study  without  finding  his  mind  permanently  enriched." — Preachers'  Magazine. 


Ipreacbets  Of  Uofcag*    Edited  by  the  REV.  j.  STUART  HOLDEN,  M.A. 

Handsome  Library  Binding.     3s.  6d.  net  each. 
HERE  AND  HEREAFTER.          By  the  REV.  J.  E.  WATTS-DITCHFIELD,  M.A. 

THE  INEVITABLE  CHRIST. 

By  the  REV.  CANON  FREDERIC  B.   MACNUTT,  M.A. 

THE  CHRISTIAN  STANDPOINT.  By  the  REV.  JOHN  M.  E.  ROSS,  M.A. 

THE  COMMONWEALTH  OF  THE  REDEEMED. 

By  the  REV.  T.  G.  SELBY. 

CHRIST  AND  EVERY-DAY  LIFE. 

By  the  REV.  W.  E.  CHADWICK,  D.D. 

"Scholarly  thought  practically  applied  to  the  needs  of  every-day  life." 

Church  Family  Newspaper. 
THE  FEAR  OF  THINGS. 

By  the  REV.  JOHN  A.  HUTTON,  M.A. 

"New,  in  style,  and  thought,  and  rich  suggestiveness."— Primitive  Methodist. 

THE  EXCHANGED  CROWNS. 

By  the  REV.  ALFRED  ROWLAND,  D.D. 

"Cultured  and  scholarly,  a  feast  to  educated  readers." — Homiletic  Review. 


REDEEMING  VISION. 

By  the  REV.  J.  STUART  HOLDEN,  M.A.     Cloth,  3s.  6d.  net 

By  the  same  Author. 
SUPPOSITION  AND  CERTAINTY.    Cloth,  2s.  net. 

ST.  PAUL    AND    HIS  CONVERTS:    Studies  in  Typical  New  Testament 
Missions. 

By  the  REV.  HARRINGTON  C.  LEES,  M.A.     Cloth,  Is.  net. 
"A  gem,  to  be  placed  amongst  our  best-loved  books." — The  Record. 

THE  FACT  AND  FEATURES  OF  THE  LORD'S  RETURN. 

By  the  REV.  HUBERT  BROOKE,  M.A.     Cloth,  2s.  net. 

THE  VISION  OF  HIS  FACE. 

By  D.  FARNCOMB.     Introduction  by  Rev.  J.  STUART  HOLDEN,  M.A.     Cloth, 
3s.  6d.  net. 

CHRIST  AND  HIS  CRITICS :  Studies  in  the  Person  and  Problems  of  Jesus. 

By  the  REV.  F.  R.  M.  HITCHCOCK,  M.A.     Cloth,  2s,  6d  net. 
By  the  same  Author. 
SUGGESTIONS  FOR  BIBLE-STUDY.    Cloth,  2s.  net. 

LONDON:    ROBERT   SCOTT,    PATERNOSTER    ROW,    E.G. 


BOOKS  FOR  PREACHERS  AND  TEACHERS. 

SERMONS  IN  A  NUTSHELL.     A  New  Handbook  of  Outlines  for  Busy 

Speakers.     By  J.  ELLIS  (Editor  of  the  "  Tool  Basket"  Series).     Cloth,  Is.  net ; 
Interleaved  Edition,  Is.  6d.  net. 
A  Treasury  of  Helpful  Suggestions. 

IN  QUIETNESS  AND  CONFIDENCE.     Fifty-six  Readings  for  Sundays  and 

Holy  Days  on  various  aspects  of  Christian  experience. 

By  the  VEN.  ARCHDEACON  WYNNE,  D.D.     Cloth,  2s.  6d.  net 
MINIATURE  SERMONS  FOR  BUSY  PEOPLE. 

By  the  REV.  H.  O.  MACKEY.     Cloth,  2s.  6d.  net 
OUTLINE  STUDIES.    For  Sermons  and  Addresses. 

By  the  REV.  JAMES  DINWOODIE.    Cloth,  2s.  6d.  net 
IDEALS  FOR  THE  CHRISTIAN  LIFE. 

By  the  REV.  W.  D.  M.  SUTHERLAND.     Introduction  by  RCT.  G.  H.  MORRISON. 

Cloth,  2s,  6d.  net 

"A  work  of  really  original  power."— British  Weekly. 

THE   USE   OF   THE   EYES   IN    PREACHING.     Preaching  and  Speaking 
without  Notes. 

By  the  REV.  JOHN  NEVILLE.     Paper,  Is.  net ;  Cloth,  Is.  6d.  net. 
SUNDAY-SCHOOL  TEACHING.    Helps,  Counsels,  and  Suggestions. 

By  the  REV.    F.    G.    LLEWELLIN.       Introductory  Letter  by  the  BISHOP  OF 
LLANDAFF.     Cloth,  Is.  net. 

TWO  TREATISES  ON  THE  CHURCH, 

By  the  REV.  THOMAS  JACKSON,  D.D.,  and  the  RBV.  ROBERT  SANDER- 
SON,  D.D.     Preface  by  the  LORD  BISHOP  OF  DURHAM.     Cloth,  3s.  6d.  net. 

THE  MESSENGER  OF  GOD.     Studies  on  Malaehi. 
By  DUGALD  MACFADYEN,  M.A.     Cloth,  2s.  net. 

THE  PROBLEM  OF   UNITY:  A  Symposium  by  Leaders  of  Evangelical 
Thought.    Preface  by  the  Right  Hon.  LORD  KINNAIRD.     Cloth,  Is.  6d.  net. 

TOOLS  FOR  TEACHERS. 

By  WILLIAM  MOODIE.     Helpful  for  those  engaged  in  the  Moral  and  Religiom 
Training  of  the  Young.     Cloth,  5s. 

MY  MATES.    Sunday  Talks  to  Young  People. 

By  J.  J.  BROWN.     Cloth,  2s.  net. 
THE  FULNESS  OF  THE  GOSPEL. 

By  D.  L.  MOODY.    Cloth,  Is.  6d.  net. 

THE  LORD'S  TREASURES,     Bible  Talks  with  the  Children. 

By  MRS.  HARDING  KELLY.     Cloth,  Is.  6d.  net. 

WORKS    ON    CONFIRMATION   AND    COMMUNION. 

CONFIRMATION  LECTURES.    A  Series  of  Notes  on  the  Church  Catechism. 

By  the  REV.  CANON  A.  E.  BARNES  LAWRENCE,  M.A.     Cloth,  Is.  net. 
CONFIRMATION.    A  Manual  for  Candidates  and  Teachers. 

By  L.  M.  BAGGE.     Preface  by  the  Rev.  Canon  W.  H.  M.  H.  AITKEN.     Cloth, 

Is.  6d.  net. 

COMMUNION  AND  OFFERING.     Simple  Instructions  upon  the  Office  of 
Holy  Communion. 

By  the  RIGHT  REV.  THE  BISHOP  OF  EDINBURGH.      Cloth,  Is. ;  Leather, 
2s.  ;  Lambskin,  3s. ;  Persian  Calf,  3s.  6d. 

THE  CHRIST  IN  HOLY  COMMUNION. 

By  the  REV.  T.  A.  GURNEY,  M.A.     Cloth,  Is.  net 

Send  for  complete  Catalogue,  free  by  poet. 

LONDON  i  ROBERT  SCOTT,    PATERNOSTER  ROW,  EG 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 


This  book  is  due  on  the 

on  the  date  tclwhj 
Renewed  books  are  suli 


__  J  U.^1^. 


1Dee'63RjW 


REC'D  LP   itfMl8l970SS 


REC'D 


2  PI*  2 

-a 


li 


DEC  15'63  -5PM       S      ^ 

O 

'JL 

1~"T" 

1       UJ 

o 

APR  2  Q  WAR  ^  ^ 

g 

z 

NOV.  41969  0 
KECEIVEn 


LD  2lA-40m-4,'63 


fe 


General  Library 

University  of  California 

Berkeley 


UNIVERSITY  QF  CALfFORNIA  LIBRARY 


